The US justice bail movement will face a crucial test on November 3, when California voters decide whether to end the age-old practice of trading money for freedom and replace it with algorithms that try to predict whether defendants deserve to be released.
If the measure, known as Proposal 25, passes, California will follow dozens of counties and several states that have adopted “risk assessment tools” designed to provide more justice to the pre-trial justice system. Traditionally, this system relied on the payment of cash or bonds to ensure that defendants would return to court – which keeps poor people in a castle or in debt to workers̵7; bail.
The victory in the referendum will come at a key moment for reformists who are trying to implement societal demands for change after the May 25 assassination of George Floyd by Minneapolis police.
But the vote is also taking place at a time of growing skepticism about using mathematical formulas to determine whether someone can return to court for trial or be arrested again. A growing number of researchers, computer scientists, and civil rights activists warn that algorithms that use history and crime history data to assess risk may exacerbate discrimination. For example, black people are arrested at higher rates than whites, making them more likely to get higher risk rates that judges could cite to keep them locked up.
These concerns have divided reform advocates in California and elsewhere as influential groups, including the American Civil Liberties Union and the Institute for Pre-Justice Justice, have abandoned risk assessment tools. Some have campaigned against the California election, opposing former allies who see the bail reform plan as a golden opportunity to end practices that criminalize poverty – and put them on the same side as the bail industry, which is also fighting the measure.
The debate in California reflects a nationwide calculation of the use of algorithms as a “default” bail replacement for reformers, said John Ruffling, a senior criminal justice researcher at Human Rights Watch, who opposes the proposal.
“Over the last few years, people have begun to understand what risk assessment tools are,” Raffling said. “And the more we study them, the more we realize that they are a huge danger to the goals of the reform movement on bail. It is a movement to reform the pre-trial system, reduce the number of detainees and reduce discriminatory influence. “
Case against bail
Bail is the cornerstone of the American criminal justice system, enshrined in the Bill of Rights, enshrined in popular culture, and resistant to change.
Theoretically, this gives most defendants who have been presumed innocent in court a chance to remain at large while their cases continue. Judges usually make payments based on bail schedules that assign the amount according to the charge, checking the defendant’s criminal record and domestic life, and relying on their own experience and intuition. Those who cannot afford to pay can look for a bond willing to borrow money.
Or they may be in prison.
The number of people behind bars awaiting trial has increased since the 1980s, reaching 470,000 in 2017. The vast majority are accused of nonviolent crimes, and a disproportionate number are blacks. Detention can be devastating: being in prison makes someone more likely to lose their job, home and child custody. Desperately choosing, they are more likely to admit their guilt for something they did not do. This makes them vulnerable to the economic consequences that a criminal conviction will carry out throughout life.
Philanthropic organizations, private companies, judges, and legislators have turned to algorithms as a solution, saying that risk assessment tools can address the arbitrariness, subjectivity, and imbalances of the existing system. The tools vary widely, but they typically use information about a person’s life, demographics, and previous convictions. This has raised concerns about biased bias, leading to unfair risk assessments.
One of the biggest tests is New Jersey, which replaced collateral with a risk assessment tool in 2017. The number of people in prison awaiting trial has dropped by 27 percent since then. But racial disparities are not diminishing.
Last year, more than two dozen researchers signed an open letter warning of the use of risk assessment tools, noting that they suffer from “serious technical shortcomings”, including reliance on criminal history data, which gives “distorted” risk forecasts. Another group of researchers argued that these tools did not reduce racial disparities among people in prison pending trial, and could actually exacerbate gaps.
These warnings are beginning to take effect.
In January, the Ohio Supreme Court ruled not to recommend risk assessment tools in a bail reform report that was reportedly violated by arguments about racial bias on the part of the ACLU.
A month later, the Institute for Pretrial Justice, a nonprofit that had persuaded jurisdictions across the country to adopt the instruments for years, changed course and disavowed them, saying they were “based on data reflecting structural racism and institutional injustice.”
“The view that people are inherently risky needs to change,” said Megan Guevara, executive partner at the Judicial Institute. “The problem with risk assessment tools is that everyone is assessed as having some risk.”
Proponents of anti-algorithm reforms prefer alternatives that eliminate detention for most nonviolent crimes, help poor people argue for release, and provide services ranging 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 in New York this year that removes precautionary measures such as detention and bail in most cases of misdemeanors and nonviolent crimes without the use of a risk assessment tool.
“New York is a model of how you take money as collateral, mostly from the equation,” said Insha Rahman, vice president of advocacy and partnerships at the Institute of Justice. Faith.
Split into algorithms
Changing views on risk assessment tools have had a significant effect in California.
The popularity of these instruments grew in December 2016, when Democratic lawmakers introduced a bill that would terminate the cash bail. Proponents of civil rights saw the announcement as a major turning point in their quest to make the justice system fairer for the poor.
“It was really exciting,” said Raj Jayadev, head of the San Jose community’s organizing 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 the amendments gradually gave more power to the technology, as well as to judges who could order someone to be held indefinitely in court. This has prompted many supporters, including De-Bug of Silicon Valley, to withdraw their approval. But the bill, known as SB10, was passed and then passed by the government. Jerry Brown signed the law in August 2018.
“The SB10 has put people between a rock and a hard place,” said Lex Stepping, director of campaign and policy at Dignity and Power Now, a nonprofit in Los Angeles who called on Brown to veto the bill.
Stepping called the risk assessment tools a “postmodern version” of translation, a discriminatory policy used by financial companies to label black neighborhoods as unworthy investments.
The California-based bail industry has launched a campaign to end the new law. He has collected enough signatures to put it before voters, who will decide on November 3 whether it will ever take effect.
The campaign against the measure, which is largely funded by the mortgage industry, its insurance companies and the Republican state, has raised more than $ 8 million. Supporters raised more than $ 6 million, mostly from billionaire John Arnold, whose 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, Democratic State and Labor .
Arnold Ventures said in a statement that risk assessment tools “have been an important part of reforms that reduce the number of prisons without increasing bias.”
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Reformist organizations that opposed the SB10 ran their own opposition campaign and said they did not coordinate their activities with the production of collateral. But the collateral industry cites the same criticism of the law, including the use of risk assessment tools.
However, Jeff Clayton, executive director of the American Collateral Coalition, which raised money for the referendum campaign, said it was not a major issue for the industry: “The most obvious reason we don’t like SB10 is that it is removing collateral in California. “.
The battle for the SB10 disappointed many of the more moderate reformers who followed it from the beginning.
“We’ve been trying to stop bail for 30 years, and now we’re able to put it in place,” said Sam Lewis, executive director of the Coalition Against Recidivism in Los Angeles. “But now some people don’t want to finish it.”
Lewis, who is Black, became a proponent of reform after his release from prison in 2012 for a gang-related murder committed as a teenager. He sees a straight line from slavery to post-emancipation laws used to impoverish and prosecute black people in the modern bail system.
“Why would I want to continue 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 at the local level.
His organization helps people accused of crimes in Santa Clara County enlist family support and share their concerns with judges, which may deter judges from bail. The group also worked with public defenders to aggressively oppose detention.
Santa Clara County already uses a risk assessment tool combined with a cash deposit, but the defense participation group’s strategy adds information that makes the process fairer, Jayadev said.
This type of hyperlocal work is the future of collateral reform, he said.
“From the outside, it looks like such a simple question: a cash deposit or no deposit,” he said. “But if you pick up this veneer and see what the purpose is to stop bail, it is trying to free people from pre-trial detention. That they were not remote from the system. “
CORRECTION (October 17, 2020, 10:28 a.m. Pacific Time): A previous version of this article distorted the current position of the Institute of Justice of the Faith on risk assessment tools. It still works with the jurisdictions that have them; it did not deny them.