Nearly everyone both within and outside of the legal profession has heard of bail reform. Couched typically as “America’s cash bail system,” it has been branded as evil and in desperate need of repair despite being one of the ten core constitutional rights protected by the Bill of Rights. Reformers loudly sold their premise that the system is biased against certain defendants based on either their race or poverty level. This begged the question: what can we do about it?
The answer arrived about a decade ago in the form of pretrial risk assessment algorithms. A one-size-fits-all solution, it neatly evaluated criminal defendants on their probability of failing to appear in court or committing a new crime, then presented the risk score to a judge. Not all scores were created equal, however. Some carried heavier weights than others, which drove significantly higher negative outcomes. For example, a person charged with a felony who was determined to be “low risk” might have been released on a promise to reappear in court. A different person charged with exactly the same crime could be labeled “high risk," and thus have bail set at an unattainable level or simply be locked-up outright without bail, as is presently the case in New Jersey.
Civil rights groups quickly lined-up to get on the bandwagon to advocate for the wholesale adoption of this system based on the use of risk assessment tools. They claimed it could replace money bail, while substantially reducing any inherent bias. The goal of a color-blind criminal meritocracy was the idea, and many national groups of elected and public officials began to buy in. The most significant public stance was taken by the Conference of Chief Justices. Comprised of the top justices and judges in the United States and its territories, this august body, as we shall see, wound up on the dead-wrong side of things.
In 2015, the Conference of Chief Justices endorsed the universal use of risk assessment tools across the United States, but within a year, cracks in their implementation began to show. At first, there was merely concern as to potential racial and gender bias, as well as discrimination against those with disabilities. But there was also evidence of problems with due process, in which actuarial group data was applied to an individual. Concerns also emerged over transparency, including the determination of who exactly determined the risk percentages of a new crimes that counted as “high, medium or low.”
By early 2017, a tsunami of academic and other research put risk assessment tools on trial. The jury came back and delivered its stunning verdict. 1) They didn’t work, i.e., they didn’t decrease pretrial jail populations); 2) they increased crime and failures to appear in some jurisdictions; and (3) they did not decrease racial bias and other bias in the system. In some cases, they actually made it worse.
Soon after, the dominoes began to fall. Organizations that previously supported risk assessments suddenly and quickly began pivoting on their positions, coming up with a host of excuses for doing so. This included the Pretrial Justice Institute, the vanguard of social justice organizations, that had vociferously advocated for risk assessments for so long it could be termed generational support. Without warning it announced that it would no longer support risk assessments. Moreover, it declared that it would work instead to undo their use throughout the nation.
Others organizations, like the ACLU saw its various regional chapters caught in a bind when the national body disavowed risk assessment, despite its longstanding support of bail reform. Forced to decouple use of the tools from the issue, which they had touted as a singular solution, they were left offering no easy answers at all.
This set the stage for where we are today — which is a chaotic mess. Those who believed in the scientific validity of pretrial risk assessment have now found themselves with no answers for the detractors who had argued that they didn't work. That mass of naysayers has now grown to hundreds of bipartisan groups and academics who have determined on their own that risk assessments cement and increase racial and other bias in the system, and don’t improve outcomes.
As they scramble to regroup, supporters of risk assessments are peddling a new, but equally flawed message: judges set bail, not computers. Their flawed argument holds that because judges can, under the new reform rubric, disregard risk assessment results, it is perfectly fine that they can still consider its recommendations, even if actually applied, they would increase racial bias.
Pushers of risk assessment methodology cannot have it both ways. Either the tools are scientifically validated, in which case they should be followed, or they are not. If they are not, why they should be they be abided by, even in part?
To this point, a disturbing point looms large. The argument from supporters is that judges should be able to look at and follow risk assessments, giving heavier weight in some cases, less weight in others. However, because we must now concede that the tools are not predictive, doing so leaves judges with no lodestar in regarding or disregarding risk assessment results. Indeed, how much weight should a risk assessment be given if it is known to be racially biased?
Overwhelming evidence be damned, the Conference of Chief Justices is not retreating on their policy of calling for national pretrial risk assessment for all criminal defendants charged with a crime in our country. Despite heavy opposition, it is clear that these high-level judges have been persuaded by dubious science. That this is a serious dereliction of duty is obvious. There can be no middle ground on the issue; either they are scientifically valid and make good predictions, and thus should be followed, or they don’t.
If we concede they don’t, which all evidence indicates is the case, then we most also concede that judges who consider their results when deciding to consider them in any given case will be making arbitrary choices as to the degree or weight to give them.
As a nation, we must remain dedicated to our goal of providing equal justice for all. When reformers first challenged the criminal justice system not so long ago, they demanded a solution to the question of what can be done about inherent racial bias against defendants. We now know there are no easy answers and that the panacea promised by pretrial risk assessments is specious. What has become clear is that the middle ground offered by the use of these tools is more like a no-man's land that must be avoided at all costs.
Arthur Pearlstein shares his vision of the future for the field: increased private order, increased organizational systems within different industries, and increased international and online dispute resolution.By Arthur Pearlstein
Arbitration BlogOne of the most important elements to consider when participating in arbitration proceedings is the available mechanisms to challenge the award of the arbitral tribunal. This element acquires an...By Mariano Tobias
CMP Resolution Blog by Lesley Allport and Katherine Graham.I’ve always been intrigued about what it’s like to be someone else. We’re so isolated in our own thoughts and feelings, we...By Katherine Graham