This article says software profiling by race or gender is bad.


By far the most controversial element of the state’s technological transformation is the risk score itself. Similar assessments have popped up across the country. One ProPublica investigation found that a tool called Compas, which was used in sentencing decisions, overwhelmingly rated black defendants higher risk than white defendants.

“An effective risk assessment must be gender and race neutral,” says Judge Caposela, one of the PSA’s early evangelists in New Jersey. “The more risk factors you have, the less likely you’ll be able to eliminate gender and racial bias.”

This new software program avoids profiling by race or gender, but discriminates against age:

The Arnold Foundation, which designed New Jersey’s PSA tool, now used in several states and dozens of local jurisdictions, attempts to sidestep that problem by vastly limiting the number of risk factors it considers to eliminate racial or gender indicators. The Foundation analyzed 1.5 million pre-trial records from across the country and narrowed its algorithm down to look at just nine risk factors: the person’s age at the current arrest, whether the current offense is violent, ... Unlike other tools, it doesn’t weigh factors like education, income, or employment, any of which might disadvantage certain demographic groups.

However, age is also a protected category! So why do they discriminate against age but not race or gender? Especially gender since it's well known males commit more violent acts than females.

  • 5
    This is a common issue with any 'discrimination' debate. There are two clear, but different, definitions for the term: 1) recognize a distinction 2) make an unjust or prejudicial distinction. We actually want laws and society and most everything to discriminate(1) but not discriminate(2).
    – user1530
    Sep 5, 2017 at 18:29
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    To clarify, age is only a protected category if you're over a certain age, not under. In other words, age discrimination ("you're too old") is illegal in the workplace, but ageism ("you're too young") is not.
    – user2565
    Sep 5, 2017 at 18:44
  • 2
    To be clear, age is not a protected category constitutionally, or under Federal law applicable to state governments.
    – Publius
    Sep 5, 2017 at 19:03
  • The only protection Age has is with regards to employment laws. I'm not sure why you are trying to apply EEOC rules to incarceration.
    – NotMe
    Sep 5, 2017 at 20:56

1 Answer 1


Apples and oranges. First of all, age is only a protected class when it comes to employment (defined by the The Age Discrimination in Employment Act).

Secondly the protection is for those who are older being discriminated against. Risk factors for criminal behavior, violent behavior and recidivism would all look more kindly on an older adult than a younger one, so it would not apply to those protections, either.

The Age Discrimination in Employment Act of 1967. ... L. 90-202) (ADEA), as amended, as it appears in volume 29 of the United States Code, beginning at section 621. The ADEA prohibits employment discrimination against persons 40 years of age or older.

The Age Discrimination in Employment Act of 1967 (ADEA) - EEOC

  • Good answer. It may also be worth noting that, under Kimel v. Florida Board of Reagents, 528 U.S. 62 (2000), sovereign immunity protects states from damages suits under the ADEA.
    – Publius
    Sep 5, 2017 at 22:30
  • @Avi - I wasn't thinking that the act could apply, but was more illustrating how the very concept, if expanded, still wouldn't fit the scenario. Sep 5, 2017 at 22:34
  • Right, I wasn't trying to point out a deficiency in your answer, just adding some info I thought might be relevant.
    – Publius
    Sep 6, 2017 at 3:20
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    You got the recidivism bit flipped. Old delinquents are more likely to commit more crimes after sentencing. This is easily understood by considering young criminals as a mix - one part crime associated with youth, and another smaller part career criminals. Recidivism is far higher in the latter group, pretty much by definition. But among old delinquents, the career criminals dominate, which drives the average recidivism up.
    – MSalters
    Sep 6, 2017 at 14:12
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    @Chloe - No, there are a number of other laws and acts that outlaw various forms of discrimination against those groups. It just happens that age is only listed in that legislation. I think, technically/conceptually, it's against the law for government to treat groups unfairly, at all, under the "Equal Protection" clause, but the specific thresholds and burden of proof is very different when a group is singled out as a "protected class," but I don't have the expertise to state that definitively. Sep 7, 2017 at 20:33

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