Pretrial Risk Assessments Come Under Fire From Civil Rights Groups

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But not every organization working to end money bail and over-incarceration agrees they’re the wrong approach.

More than 100 national, state and local organizations signed a statement raising civil rights concerns over the use of risk assessment algorithms to predict a person’s likelihood of missing trial or threatening public safety if released from jail before trial.

New Jersey and North Carolina are among the states that have implemented risk assessments to reduce the number of people required to pay money bail or else be detained pretrial.

Risk assessments may rely on potentially inaccurate data about prior failures to appear in court, while not reflecting that arrests could be biased against people of color and reveal more about the behavior of police and prosecutors than those in the justice system, said Vanita Gupta, The Leadership Conference on Civil and Human Rights president and CEO, during a Monday afternoon press call.

“Real reform requires addressing underlying structural inequalities,” said Gupta, who ran the U.S Justice Department’s civil rights division from 2014 through 2017.

The signed statement calls for an end to money bail without reliance on risk assessments, which according to LCCHR “represent local policymakers’ attempt to abdicate their responsibility to end unjust money bail systems and create a fairer pre-trial system.”

Where such algorithms are used, the signatories ask that they be improved to eliminate unwarranted racial disparities, determine likelihood to make court instead of failure to appeal and be developed with community input and regularly revalidated. The advocates also want jurisdictions to commit to being transparent about how the algorithms are developed, as well as make them independently validated and open to legal challenge.

Several national initiatives are actively working to refine jurisdictions’ risk assessments as part of a larger effort to reduce over-incarceration, including the Laura and John Arnold Foundation and the MacArthur Foundation’s Safety and Justice Challenge. Neither signed onto the statement, and the former reaffirmed risk assessments—so long as they are transparent and reduce racial bias in the pretrial process—in a statement:

“LCCHR’s description of risk assessments as tools that ‘can defer the responsibility of determining who to detain pretrial and who to release’ misconstrues the role of risk assessments. Risk assessments, such as the Public Safety Assessment (PSA) developed by LJAF, do not make pretrial release decisions or replace a judge’s discretion. They provide judges and other court officers with information they can choose to consider—or not—when making release decisions. We believe—and early research shows—that this type of data-informed approach can help reduce pretrial detention, address racial disparities and increase public safety.”

More than half a million people are incarcerated pretrial in 2018, some pleading guilty simply so they can return to work or home, said Jeff Robinson, American Civil Liberties Union deputy legal director.

The ACLU has made 11 legal challenges to bail practices across 36 states.

Even in states like New Jersey that have improved pretrial release rates, risk assessments “don’t provide the specific, individualized information needed to make a tailored determination,” Robinson said.

Civil rights advocates called for a timely, individualized, adversarial hearing in front of a neutral judge instead.

About 40,000 people have initial bailing hearings in Philadelphia annually, and in 95 percent of juvenile cases where a risk assessment determines a youth is “high risk,” they are detained, said Mark Houldin, the Defender Association of Philadelphia policy director.

“To solve this problem we need a systemic solution, not the promise of a solution that an algorithm gives us,” Houldin said. “Once you label someone ‘high risk’ it becomes a defining characteristic of that person.”

The Brooklyn Bail Fund has paid the bail of about 3,000 people in the last three years.

New York City’s pretrial service agency interviews and scores people’s risk of missing court based on employment history, community contacts, place of residence, and previous failure to appear prior to recommending their release. But 95 percent of people make their court appearances with phone reminders, said Rachel Foran, Brooklyn Bail Fund managing director.

Risk assessments should only be used where they’re proven to significantly reduce pretrial populations, Foran added.

“We’re talking about a population and people who’ve never been convicted of crimes and may never be,” Gupta said.

CORRECTION: This article previously stated 95 percent of cases where risk assessments determined a person "high risk" led to detainment in Philadelphia. That figure pertained only to juvenile cases because there is no adult risk assessment in the city.

Dave Nyczepir is a News Editor at Government Executive’s Route Fifty and is based in Washington, D.C.

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