California may replace cash bail with algorithms – but some worry it will be less fair

The movement to abolish bail from the U.S. justice system will face a decisive test Nov. Nov., when California voters will decide whether to end the centuries-old practice of trading money for independence and instead have algorithms that try to predict whether defendants Whether or not. Published before the hearing.

If the ballot criteria, known as the Preliminary 25 Pass, would follow California’s dozens of counties and some states that have adopted “risk assessment tools” aimed at bringing more fairness to the pretrial justice system. Traditionally, the system has relied on the payment of cash or bonds that defendants would return to court – which would keep the poor off or bail out those in debt.

The victory over the referendum will come at a crucial moment for reform lawyers, who have been raising public demands for change since the May 25 assassination of George Floyd by Minneapolis police.

But it also comes at a time of growing skepticism about the use of vote counting formulas as to whether someone will return to court for a hearing or be re-arrested. A growing number of researchers, computer scientists and civil rights advocates have warned that the algorithms – which use data about a person’s background and criminal history to assign to risk – could exacerbate discrimination. Black people, for example, are arrested at higher rates than white people, making them more likely to take risks, which judges may cite to keep them locked.

Since influential groups in California and elsewhere, such as the American Civil Liberties Union and the Pretrial Justice Institute, have rejected risk assessment tools, these concerns have led to divisive reform in California and elsewhere. Some have campaigned against California’s vote move, claiming against former allies who see the bail reform plan as a golden opportunity to end the practice of blaming poverty – and putting them on the same side of the bail bond industry, which is also fighting. . Size.

The California debate reflects a nationwide calculation of the use of algorithms as a substitute for reformers’ “default” bail, said John Raffling, senior researcher at Human Rights Watch and Criminal Justice, opposes Proposition 25.

“Over the last few years, people have begun to understand what risk assessment tools are,” Raffling said. “And the more we explore them, the more we realize that they are a major threat to the goals of the bail reform movement. This is a movement to improve the pretrial system, reduce the number of people holding pretrial and reduce the discriminatory effect. ”

Case against bail

Bail is a fundamental part of the American criminal justice system, enshrined in the Bill of Rights, bound to popular culture and resistant to change.

In theory, it gives most defendants, presumed innocent before a hearing, a chance to be free when their case goes ahead. Judges usually make payments by examining the defendant’s criminal record and home life, and based on their own experience and intuition, assigning the amount according to the charge in consultation with the bail schedule. Those who can’t pay can find a bondman willing to lend money.

Or they could sit in jail.

The number of people behind bars awaiting a hearing has exploded since the 1980s, reaching 470,000 in 2017. Most are charged with nonviolent crimes and an unusual number are black. Preterm detention can be devastating: Being stuck in prison increases one’s chances of losing one’s job, their home and their children’s custody. Desperate to get out, they are more likely to be blamed for what they did not do. Which makes them vulnerable to the lifelong economic consequences of a criminal conviction.

Philanthropists, private companies, judges and legislators have turned to algorithms as a solution, saying that risk assessment tools can eliminate the arbitrariness, inferiority and inequality of the existing system. Tools vary widely, but they usually use information about a person’s life, demographic, and previous criminal record. Which has also raised concerns about creating inappropriate risk points for back-in bias.

One of the largest test cases in New Jersey, which replaced bail in 2017 with a risk assessment tool. The number of people detained in jail has dropped by 27 per cent since then pending a hearing. But racial discrimination has not deteriorated.

Last year, more than two dozen researchers signed an open letter warning about the use of risk assessment tools, saying they suffer from “serious technical shortcomings”, relying on data from criminal history that meet “distorted” risk forecasts. Provides. Another team of researchers argued that these tools did not reduce racial discrimination among inmates while they were awaiting a prison sentence, and indeed that distance increased.

The effect of those warnings is beginning.

In January, the Ohio Supreme Court chose not to recommend risk assessment tools in its bail reform report, which is reportedly influenced by the ACLU’s racial bias arguments.

A month later, the Pretrial Justice Institute, a nonprofit that persuaded jurisdictions across the country to adopt the tool over the years, took a course course and said they were “derived from data reflecting structural racism and institutional inequality.”

Meghan Guevara, executive partner at the Pretrial Justice Institute, said people need to change the perception that they are inherently dangerous. “The problem with risk assessment tools is that everyone is ranked based on having some kind of risk.”

Reform advocates who oppose the algorithm favor alternatives that eliminate detention for most nonviolent crimes, help poor people argue for liberation, and provide services from transportation to mental health care, making it easier for people to return to court. .

They lobbied for legislation enacted in New York this year that removes pretrial detention and cash bail in most misdemeanor and nonviolent criminal cases without the use of a risk assessment tool.

Insha Rahman, vice president of advocacy and partnership at the New York A Tax Institute of Justice, said, “New York is a model for how you bail out money, mostly out of the equation.”

Splitting on algorithms

Thinking about risk assessment devices has had a dramatic impact in California.

In December 2016, the instruments were growing in popularity, when the legislators of the Democratic state introduced a bill that would end cash bail. Civil rights advocates saw his announcement as a major turning point in improving the justice system for the poor.

“It was really exciting,” said Raj Jayadeva, head of the San Jose community organization group Silicon Valley D-Bug. “We were full of hope and ready to work.”

The original version of the bill did not mention risk assessment tools, but the improvements gradually gave way to technology, as well as more power to judges, who could order someone held indefinitely before a trial. Which led many supporters, including Silicon Valley D-Bug, to withdraw their support. But the bill, known as SB10, passed, and then-government. Jerry Brown signed the law into law in August 2018.

Raj Jaydev, director of Silicon Valley D-Bug, speaks during a bail reform rally against the Santa Clara County Hall of Justice in February 2018 in San Jose, California.Getty Images File by Carl Mondon / MediaViz Group

“SB10 put people in a rocky and tough place,” said Lex Stapling, director of operations and policy at Designity and Power Now, urging Los Angeles Nonprofit or Brown to veto the bill.

Stapling has been called a risk assessment tool, a “modern version” of redlining, which has made black neighbors used by financial companies unfit for investment.

The bailing industry, which is facing extinction in California, launched a campaign to shut down the new law. Enough signatures were collected to put it before voters, Nov. 3. Which will decide whether it will ever be implemented.

The campaign against the move has been largely funded by the bailout industry, funded by insurance companies and the state’s Republican Party, which has raised more than $ 8 million. Supporters have raised more than a million dollars, mostly from billionaire John Arnold, whose risk assessment tool Arnold Ventures used in New Jersey and dozens of jurisdictions in the United States, Steve Balmer, owner of the Los Angeles Clippers, and State Democrats.

Arnold Ventures said in a statement that risk assessment tools have been “an important part of reforms that shrink prison populations without increasing bias.”

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Reform organizations have launched their own anti-SB10 campaign, saying they have not coordinated with the bailout industry. But the bailout industry has cited some similar criticisms of the law, including its reliance on risk assessment tools.

However, Jeff Clayton, executive director of the American Bail Coalition, which raised money for the referendum campaign, said the industry was not a concern: “The most obvious reason we don’t like SB10 is that it removes bail.” In California. “

The fight over the SB10 has disappointed many more moderate reformers who have stuck with it from the start.

“For 30 years, we’ve been trying to end cash bail and now we’re in a position to end it,” said Sam Lewis, executive director of the Los Angeles-based Anti-Residivism Coalition. “But now, some people don’t want to end it.”

Lewis, who is black, became an advocate of reform in a gang-related murder case involving a teenager after his release from prison in 2012. It looks at a straight line from slavery to post-emancipation legislation used to make black people poorer and legal in the modern bail system.

“Why would I want to continue with a system based on racism, at least for black people?” Lewis said.

But Jaydev of Silicon Valley D-Bug says the discussion has intensified his belief in changing the system locally.

His organization helps people accused of crimes in Santa Clara County gather family support and share their struggles with judges, an approach that can prevent a judge from granting bail. The group has also worked with public guards to make an aggressive argument against prejudice detention.

Santa Clara County already uses the risk assessment tool in conjunction with cash bail, but the group’s “participatory protection” strategy adds information that makes the process more justified, Jayadeva said.

That kind of hyperlocal work is the future of bail reform, he said.

“From the outside, it sounds like such a simple question, not about money bail or money bail.” “But if you take that conclusion and see what the goal is to end money bail, he is trying to free people from pretrial imprisonment. To keep them scattered from the system. ”

Update (Oct. 17, 2020, 10:28 am and): An earlier version of this article misused the current position on the risk assessment tools of the Vera Institute of Justice. He still works with the jurisdictions who have; He does not deny them.