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Algorithm-dictated Freedom? Vet California’s New Pretrial Risk Assessment Tool

by Virginia Griese

An individual’s liberty may soon be in the hands of technology. 

Pretrial risk-assessment algorithms will replace the cash bail system in California, thanks to S.B. 10, the new bail reform law signed by Governor Jerry Brown effective in October 2019. 

Pretrial risk assessment assigns a suspect a determination of “low,” “medium,” or “high” risk of failure to appear in court or of committing another crime posing a risk to public safety. With a “high” risk score, defendants must be detained.

While algorithms might be less biased than human judges (the jury is still out on this issue), they require careful calibration and supervision. Without them, similar prejudicial outcomes may occur, in addition to new ones. For instance, in January 2018, Dartmouth University researchers discovered that COMPAS, an already popular tool, provided discriminatory results, as black defendants were incorrectly classified as being at risk of committing a crime within two years at a rate of 40 percent as opposed to whites, at 25.4 percent. 

With such disturbing revelations, it is clear that some guidance must be given. As it stands, the new law does not set any directions for how individual counties should assess risk levels.

Without laying out procedures to guard against unfair outcomes, algorithmic pretrial risk assessment tools may jeopardize the liberty of suspects, especially people of color.

In a December 2018 letter to the Judicial Council of California, the Electronic Frontier Foundation warns: “These tools are intended to reduce bias and discrimination, but when not carefully evaluated and validated, they can perpetuate the same sort of discriminatory outcomes as existing systems that rely on human judgement. They can also result in new, unexpected errors.” The nonprofit group urges “meaningful restrictions” on the use of pretrial risk assessment tools and “the information generated by these tools.” 



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