The movement to eradicate bail from the American legal system will face a crucial test on November 3, when Californian voters decide whether to end the centuries-old practice of trading money for freedom and replace it with algorithms that try to predict whether defendant deserves to be released before the trial.
If the voting measure known as Bill 25 passes, California will follow dozens of counties and several states that have adopted “risk assessment tools” aimed at bringing more justice to the judicial system. Traditionally, this system has relied on the payment of cash or bonds to guarantee that the defendant returns to court ̵
A victory in the referendum would come at an important moment for reformists trying to take advantage of public demands for change after the assassination of George Floyd on May 25 by Minneapolis police.
But the vote also comes at a time of growing skepticism to use mathematical formulas to determine whether someone is likely to return to court for trial or be arrested again. An increasing number of researchers, computer scientists and civil rights activists have warned that the algorithms – which use data on a person’s background and criminal history to assign a risk score – can exacerbate discrimination. Black people, for example, are arrested at higher rates than white people, making them more likely to get higher risk scores, which judges can quote to keep them locked up.
These concerns have divided advocates in California and elsewhere as influential groups, including the American Civil Liberties Union and the Pretrial Justice Institute, have rejected risk assessment tools. Some have begun fighting California’s voting measure, pitting former allies who see the bail reform plan as a golden opportunity to end a practice that criminalizes poverty – and put them on the same page as the bail bond industry, which is also fighting for the measure.
The debate in California reflects a nationwide inventory of the use of algorithms as the reformers’ “standard” substitute for bail, said John Raphling, a senior researcher in criminal law at Human Rights Watch who opposes proposal 25.
“Over the last few years, people have begun to understand what risk assessment tools are,” Raphling said. “And the more we explore them, the more we realize that they are a huge danger to the goals of the bail reform movement. This is a movement to reform the prior system, reduce the number of people held prior to the test and reduce discriminatory influence. ”
The case against bail
Bail is a cornerstone of the American criminal justice system, enshrined in the law of rights, rooted in popular culture and resistant to change.
In theory, it gives most defendants, presumably innocent before the trial, the chance to remain free while their cases continue. Judges typically determine payments by consulting bail plans that award an amount under the charge, by examining defendant’s criminal record and home life, and by relying on their own experience and intuition. Those who can not afford to pay can seek a bondman who is willing to borrow the money.
Or they could be in jail.
The number of people behind bars awaiting trial has exploded since the 1980s, reaching 470,000 in 2017. The vast majority are accused of non-violent crimes, and a disproportionate number are black. Prison defense can be devastating: Being stuck in jail makes it more likely that someone will lose their job, their home, and custody of their children. They are desperate to get out and are more likely to plead guilty to something they did not. It leaves them vulnerable to the lifelong financial consequences of a criminal conviction.
Philanthropic organizations, private companies, judges, and legislators approached algorithms as a solution, saying that risk assessment tools could eliminate arbitrariness, subjectivity, and differences in the existing system. The tools vary widely, but they generally use information about a person’s life, demographics, and previous criminal record. This has given rise to concern about embedded bias, which gives unreasonable risk scores.
One of the biggest test cases is New Jersey, which replaced bail with a risk assessment tool in 2017. The number of people stuck in jail while awaiting trial there has dropped by 27 percent since then. But racial differences have not come out.
Last year, more than two dozen researchers signed an open letter warning of the use of risk assessment tools, saying they suffered from “serious technical errors”, including reliance on criminal history data that provide “distorted” risk predictions. Another group of researchers argued that the tools did not diminish racial differences among people who were imprisoned while awaiting trial, and may actually exacerbate the gaps.
These warnings are beginning to have an impact.
In January, the Ohio Supreme Court chose not to recommend risk assessment tools in a bail reform report, reportedly influenced by arguments about racial bias from the ACLU.
A month later, the Pretrial Justice Institute, a nonprofit organization that for years persuaded jurisdictions across the country to use the tools, reversed course and rejected them, saying they were “derived from data reflecting structural racism and institutional inequality.”
“The idea that people are inherently risky needs to change,” said Meghan Guevara, an executive partner at the Pretrial Justice Institute. “The problem with risk assessment tools is that everyone is ranked as being some kind of risk.”
Proponents of reform that oppose algorithms favor alternatives that remove detention for most non-violent offenses, help poor people argue for release, and provide services, from transportation to mental health care, that make it easier for people to return to court .
They lobbied for a law that went into effect this year in New York that eliminates the custody and withholding of cash in most misdemeanors and non-violent cases without the use of a risk assessment tool.
“New York is a model for how to take money bail mainly out of the equation,” said Insha Rahman, vice president of advocacy and partnerships at the Vera Institute of Justice.
A breakdown of algorithms
The shift in thinking about risk assessment tools has had a dramatic effect in California.
The tools grew in popularity in December 2016, when Democratic state legislators introduced a bill that would end cash bail. Civil rights activists saw the announcement as a major turning point in their efforts to make the justice system more equitable for poor people.
“It was really exciting,” recalled Raj Jayadev, the leader of a San Jose community organization group called Silicon Valley De-Bug. “We were full of hope and ready to get to work.”
The original version of the bill did not mention risk assessment tools, but changes gradually gave more power to the technology as well as to judges who could order someone detained indefinitely before the trial. It caused many supporters, including Silicon Valley De-Bug, to withdraw their endorsements. But the bill, known as SB10, passed, and then the government. Jerry Brown signed it into law in August 2018.
“SB10 put people between a rock and a hard place,” said Lex Steppling, director of campaigns and politics at Dignity and Power Now, a nonprofit in Los Angeles that called on Brown to veto the bill.
Steppling called risk assessment tools as a “postmodern version” of redlining, the discriminatory policies used by financial firms to designate black neighborhoods as unworthy of investment.
The California bailout industry is launching a campaign to close the new law. It collected enough signatures to put it to the voters, who will decide on November 3 whether it will ever take effect.
The campaign against the measure, largely bankrolled by the bail industry, the insurers financing it and the Republican Party, has raised more than $ 8 million. Supporters have raised more than $ 6 million, mostly from billionaire John Arnold, if Arnold Ventures developed a risk assessment tool used in New Jersey and dozens of jurisdictions across the United States, Los Angeles Clippers owner Steve Ballmer, the State Democratic Party and government work unions.
Arnold Ventures said in a statement that risk assessment tools “have been an important part of reforms that reduce prison populations without exacerbating bias.”
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The reform organizations that turned against SB10 have carried out their own opposition campaign, saying they have not coordinated with the bail industry. But the bail industry has cited some of the same criticisms of the law, including its reliance on risk assessment tools.
However, Jeff Clayton, CEO of the American Bail Coalition, which raised money for the referendum campaign, said it was not the heart of the industry’s concern: “The most obvious reason we do not like SB10 is that it eliminates bail. in California. ”
The battle for SB10 has frustrated many of the more moderate reformers who have stuck to it from the start.
“For 30 years we have been trying to end the cash bail and now we are able to end it,” said Sam Lewis, CEO of the Los Angeles-based Anti-Recidivism Coalition. “But now some people will not finish it.”
Lewis, who is black, became a lawyer for the reform following his release from prison in 2012 for a gang-related murder committed when he was a teenager. He sees a direct line from slavery to post-emancipation laws used to impoverish and prosecute black people to the modern bail system.
“Why would I continue with a system that is based on racism at least for black people?” Said Lewis.
But Jayadev of Silicon Valley De-Bug says the debate has deepened his belief in changing the system locally.
His organization helps people accused of crimes in Santa Clara County gather support from the family and share their struggle with judges, an approach that could deter judges from imposing bail. The group has also worked with public defenders to aggressively argue for detention before the test.
Santa Clara County already uses a cash bail risk assessment tool, but the group’s “participatory defense” strategy adds information that makes the process fairer, Jayadev said.
That kind of hyperlocal work is the future of bail reform, he said.
“From the outside in, it seems like such a simple question, whether money bailey or no bail,” he said. “But if you lift the veneer and look at what the goal is to end the money bail, it tries to free people from prison before the test. To keep them detached from the system. ”
CORRECTION (October 17, 2020, 10:28 ET): An earlier version of this article incorrectly stated the Vera Institute of Justice’s current position on risk assessment tools. It still works with jurisdictions that have them; it has not rejected them.