More than 100 civil rights organizations have endorsed a letter warning that using risk assessment tools and algorithms as a replacement for money bail could perpetuate rather than reduce inequities in pretrial systems.
The letter, titled "A Shared Statement of Civil Rights Concerns," outlines six principles they want to see applied to any tool used to calculate the whether a defendant will be freed prior to trial. Their stated goal is to make sure that pretrial detention is the last resort, used only when absolutely necessary for public safety, and used only after a rigorous, adversarial process where the defendant can challenge his or her detention.
The groups that have signed the letter include the American Civil Liberties Union, the National Association for the Advancement of Colored People (NAACP), the Drug Policy Alliance, and the National Council of Churches.
In a press call Monday, the NAACP Legal Defense Fund's Monique Dixon argued: "Pretrial detention reform that addresses the injustice of people being jailed because of their poverty is urgently needed, but substituting risk assessment instruments for money bail is not the answer."
This comes amid a growing national push to eliminate the use of money bail—a push that all these groups also support. On any given day, America has around half a million people in jail who have not yet been convicted of a crime. Many of these inmates are behind bars not because they're clear-cut flight risks or threats to their communities but because they cannot afford to pay bail.
To change this system, courts are looking for other tools to assess whether a defendant is likely to skip town or to commit other crimes while freed. Pretrial assessments are intended to objectively calculate the risk factors connected to any specific defendant.
One of the chief factors considered is a defendant's their past criminal record. But that can be tainted by a history of unequal enforcement, particularly in poorer communities and minority neighborhoods. As the report warns, "Automated predictions based on such data—although they may seem objective or neutral—threaten to further intensify unwarranted discrepancies in the justice system and to provide a misleading and undeserved imprimatur of impartiality for an institution that desperately needs fundamental change."
In short, these groups want to avoid replacing one thoughtlessly applied system—bail schedules—with an opaque automated system that can end up in the exact same place: with people needlessly stuck in jail even though they have not yet been convicted.
Rejecting risk assessment tools entirely is probably not a realistic goal, given that there's still a huge fight ahead to reduce the dependence on money bail. So the letter puts forth six principles that the authors think should shape how assessment tools are implemented. They want the data to be implemented in a way that reduces the racial disparities within the justice system; they don't want assessment tools ever to recommend preventative detention, and call instead a release hearing with procedural safeguards; they want pretrial detention or supervision to be imposed only after an adversarial hearing where a prosecutor must make a case that there's an identifiable risk if the defendant is released; they want pretrial assessment tools to be transparently operated, independently validated, and open to challenge; they want pretrial assessments to calculate and communicate the likelihood of success (that is, that the defendant will return to court and not commit further crimes) rather than failure; and they want pretrial assessment tools to be developed with community input and subjected to regular review and oversight.
That seems like a lot. New Jersey has almost completely abandoned money bail and leans heavily on the use of a pretrial risk assessment algorithmic tool developed by the Laura and John Arnold Foundation to score risk factors. While it does put a score on the risk factors and recommends release (often with monitoring) or detention, the way the state has implemented the assessment is relevant to these principles. The assessment score never determines on its own whether a defendant is released. The prosecutor has to request a hearing if he or she wants to detain a defendant prior to trial—the judge cannot simply decide to detain the defendant on his or her own. Then the prosecutor has to make a case for holding the defendant. The defendant is represented by an attorney through this. New Jersey operates on the assumption of release and requires the prosecutor to prove that there's no way to make certain a defendant will show up for court or commit crimes while released in order to keep him or her in jail. The information that gets pulled into the assessment score is simple to understand and transparent and based entirely on the defendant's own background of behavior.
Not all assessment tools are that transparent or so focused on a defendants' own behavior and record. Others pull in demographic and employment data that the defendant cannot control and that are influenced by policing choices.
Note that New Jersey's bail reforms did not happen in a vacuum. They were part of a significant overhaul of New Jersey's criminal justice system intended to discourage police from arresting people for low-level crimes in the first place and to speed up trials significantly. New Jersey's incarceration rate was already dropping before the bail reforms were implemented, but it has continued to do so under the new system.
In response to these concerns, the Arnold Foundation released a statement saying it agrees with the goals of limiting pretrial detention and reducing racial bias. It adds that it doesn't intend their pretrial assessment tool to supplant or replace smart decision-making on the part of judges. It's supposed to aid the process. "We believe—and early research shows—that this type of data-informed approach can help reduce pretrial detention, address racial disparities and increase public safety," the foundation says.
Read the full letter of concern here.
This blog post has been updated to correct Monique Dixon's organizational association.