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Civil Rights Groups Urge Ending Use of Pretrial Bail Risk Assessment Tools

by Steve Horn

More than 100 civil rights organizations have signed a statement to denounce the use of pretrial bail risk assessment algorithm tools meant to determine conditions of bail and, in many cases, jail.

The 10-page document titled, “The Use of Pretrial ‘Risk Assessment’ Instruments: A Shared Statement of Civil Rights Concerns,” by The Leadership Conference on Civil and Human Rights, outlines reasons for opposing risk assessment tools. The tools, and the computer-generated algorithms they create, have become increasingly fashionable in criminal courts nationwide.

Champions of these tools – which look at demographic data, ZIP Code-based statistics and previous criminal records, among other data – say they create a fair and neutral system by which bail and pretrial detention decisions can be made. Judges, humans that they are, can be biased in a cornucopia of ways, the argument goes. Thus, a movement has begun to transfer these decisions over to computers.

The dozens of groups that signed onto the jeremiad against risk assessment tools, however, beg to differ. They say algorithms themselves, created by humans, are often biased and can lead to replication of some of the worst of the inequities that exist in the U.S. criminal justice system.

“Machine learning is the process by which rules are developed from observations of patterns in the training data. As a result, biases in data sets will not only be replicated in the results, they may actually be exacerbated,” explains the Shared Statement. “For example, since police officers disproportionately arrest people of color, criminal justice data used for training the tools will perpetuate this correlation. Thus, 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.”

If risk assessment tests are to be done – and the groups prefer they not, though they recognize it’s a reality in myriad jurisdictions – then certain criteria should be met. They have called for nothing short of the risk assessment tool to be totally retooled.

“[I]t is imperative that pretrial risk assessment instruments, if used at all, be designed to help meet the goal of reducing racial disparities in the criminal justice system,” the Shared Statement says. “If a tool cannot help achieve that goal, then it is not a tool that the justice system needs. All pretrial risk assessment instruments must be designed, tested, calibrated, and implemented with the goals of exposing, documenting, reducing, and ultimately eliminating unwarranted racial disparities across the criminal justice system.”

Needs over risks

The Shared Statement also calls for the tests to be used contrary to how they’re now used. That is, to ensure the vast majority of people do not end up incarcerated pretrial, the pretrial risk assessment must put more time and effort into looking for probability of pretrial success.

“In accordance with basic concepts of fairness, the presumption of innocence, and due process, pretrial risk assessment instruments must frame their predictions in terms of success upon release, not failure,” the statement says. “Communicating and framing a pretrial risk assessment instrument’s prediction in negative terms (that is, the likelihood the accused would fail to appear upon release) may unnecessarily lead decisionmakers to perceive and treat the accused more harshly. To the extent possible, the tools should also provide the likelihood of success when certain supports or services are provided, consistent with identifying and addressing genuine needs rather than purported risks.”

Because the algorithms used to determine pretrial detention and high bail rates currently exist in a “black box” status, under the cloak of secrecy as some sort of secret sauce, the groups have called for total transparency in risk assessments. They believe that will make appeals fairer and also serve to further democratize the criminal justice system.

“This means adopting local legislation or enforceable regulations that enforce transparency by sharing the data and design with that specific jurisdiction, in addition to reporting requirements throughout the implementation process,” the groups explain of their support for greater transparency. “The source code and training data (appropriately anonymized) should be made public. And all tools and their documentation must be clear about the source data and code underlying each conclusion in any report.”

Community input

In that same vein, the Shared Statement calls for community and stakeholder panel involvement in developing criteria for pretrial risk assessments, as opposed to the inputs emanating solely from private, contracted companies that come in with predetermined algorithms. Regular audits of the system would be necessary, it says.

The authors also have created an online portal on which other signatories can sign the Shared Statement.

California became the first state in the country to abolish cash bail with the passage of Senate Bill 10 – styled as the California Money Bail Reform Act – on August 28, 2018, and will transition to a risk-assessment system. Because the bill will essentially put the for-profit bail industry out of business, the American Bail Coalition has announced that it will put financial and political muscle behind getting the issue on the ballot for the 2020 election cycle. By state law, it needs 365,880 signatures from residents of the state to give the referendum idea a ballot line.

“Our industry has been a significant part of this grand experiment called the United States of America for most of its history,” William Carmichael, chairman of the American Bail Coalition, said in a statement published on the Coalition’s website. “We are not going to allow it to go away, especially at the expense of the trammeling of constitutional rights and the dehumanization of all of those who will be processed by the new justice-by-algorithm system.”

Cash bail, of course, comes with its own set of major human rights issues. Jess Farris, criminal justice project director for the American Civil Liberties Union of Southern California, spoke to that in a statement provided to BuzzFeed News.

“This bill unfortunately replaces that flawed system with one that could increase pretrial detention and increase racial disparity,” Farris said. “In our system, liberty should be the norm before you’re convicted of a crime.”

Counties in California face an October 2019 deadline for implementing their new risk assessment systems. That is, unless of course, the new system is halted by legal challenges. 


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