The movement to eradicate bail from the American justice system 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 before the trial.
If the voting measure known as Proposition 25 passes, California will follow dozens of counties and several states that have adopted “risk assessment tools” intended to bring more fairness to the preliminary justice system. Traditionally, that system has relied on the payment of cash or bonds to ensure that the defendants return to court, which keeps the poor locked up or in debt to free the slaves.
A referendum victory will come at a key time for reform advocates, who are trying to exploit public demands for change following the May 25 killing of George Floyd by the Minneapolis police.
But the vote also comes at a time of growing skepticism about using mathematical formulas to determine whether someone is likely to go back to court for trial or be arrested again. A growing number of researchers, computer scientists and civil rights defenders have warned that algorithms, which use data on a person̵
These concerns have divided reform advocates in California and elsewhere as influential groups, including the American Civil Liberties Union and the Pretrial Justice Institute, have disavowed risk assessment tools. Some have begun to campaign against the California electoral measure, pitting them against former allies who see the bail reform plan as a golden opportunity to end a practice that criminalizes poverty – and putting them on the same side of the country. bond industry, which is also fighting the measure.
The debate in California reflects a nationwide showdown on the use of algorithms as the reformers’ “default” substitute for bail, said John Raphling, a senior criminal justice researcher at Human Rights Watch, who opposes Proposition 25. .
“In recent 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 pose a huge danger to the goals of the bail reform movement. This is a movement to reform the pre-trial system, to reduce the number of people detained before the trial and to reduce the discriminatory impact. “
The case against the bail
Bail is a cornerstone of the American criminal justice system, enshrined in the Charter of Rights, rooted in popular culture and resistant to change.
In theory, it offers most defendants, presumed innocent before trial, the chance to remain free during the proceedings. Judges typically settle payments by consulting bail programs that allocate an amount based on the indictment, reviewing the defendant’s criminal record and family life, and relying on their own experience and intuition. Those who cannot afford to pay can seek out a servant who is willing to lend the money.
Or they can stay in prison.
The number of people awaiting trial behind bars 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. Pre-trial detention can be devastating: Getting stuck in prison increases the chances of someone losing their job, home, and custody of their children. Desperate to get out, they are more likely to plead guilty to something they didn’t do. This makes them vulnerable to the life-long economic consequences of a criminal conviction.
Philanthropic organizations, private companies, judges and lawmakers have turned to algorithms as a solution, arguing that risk assessment tools could remove the arbitrariness, subjectivity, and disparities of the existing system. The tools vary widely, but generally use information about a person’s life, demographics, and criminal record. This has raised concerns about the inherent bias that produces unfair risk scores.
One of the biggest test cases is New Jersey, which replaced bail with a risk assessment tool in 2017. Since then, the number of people stuck in prison awaiting trial has dropped by 27 percent. But the racial disparities have not moved.
Last year, more than two dozen researchers signed an open letter warning about the use of risk assessment tools, saying they suffered from “serious technical flaws”, including reliance on criminal history data that provide predictions. of “biased” risk. Another team of researchers said the tools did not reduce racial disparities among people incarcerated pending trial and may actually make the gaps worse.
These warnings are starting 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 the ACLU’s racial bias arguments.
A month later, the Pretrial Justice Institute, a nonprofit organization that for years persuaded jurisdictions across the country to adopt the instruments, reversed course and disavowed them, saying they were “derived from data that reflected structural racism and institutional inequality “.
“The idea that people are inherently risky must change,” said Meghan Guevara, executive partner of the Pretrial Justice Institute. “The problem with risk assessment tools is that everyone is classified as subject to some kind of risk.”
Reform advocates opposing algorithms favor alternatives that eliminate detention for most nonviolent crimes, help the poor argue for release, and provide services, from transportation to mental health care, that facilitate return to court .
They’ve lobbied for a law that went into effect this year in New York, which eliminates pre-trial detention and cash bail in most minor and nonviolent crime cases without using a risk assessment tool.
“New York is a model for how bail is taken mostly out of the equation,” said Insha Rahman, vice president of defense and partnerships at the Vera Institute of Justice.
A division on algorithms
The shift in thinking about risk assessment tools has had a dramatic effect in California.
The tools were growing in popularity in December 2016, when Democratic state lawmakers introduced a bill that would have ended cash bail. Civil rights advocates saw the announcement as a major turning point in their drive to make the justice system fairer for the poor.
“It was really exciting,” recalled Raj Jayadev, head of a San Jose community organization group called Silicon Valley De-Bug. “We were full of hope and ready to go 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 indefinitely detained before trial. This has led many supporters, including Silicon Valley De-Bug, to withdraw their endorsements. But the bill, known as SB10, was passed and then Gov. Jerry Brown signed it into law in August 2018.
“SB10 puts people between a rock and a hard place,” said Lex Steppling, director of campaigns and policies at Dignity and Power Now, a Los Angeles-based nonprofit that urged Brown to veto the design of law.
Steppling called risk assessment tools “a postmodern version” of redlining, the discriminatory policies used by financial firms to designate black neighborhoods as unworthy of investment.
California’s dying bail industry has launched a campaign to close the new law. It has collected enough signatures to put it in front of the voters, who will decide on November 3 whether it will ever enter into force.
The campaign against the measure, largely funded by the bail industry, the insurance companies that finance it and the Republican State Party, raised more than $ 8 million. Backers raised more than $ 6 million, primarily from billionaire John Arnold, whose Arnold Ventures developed a risk assessment tool used in New Jersey and dozens of jurisdictions across the United States, by Los Angeles Clippers owner Steve Ballmer. , by the State Democratic Party and by the state labor unions.
Arnold Ventures said in a statement that risk assessment tools “have been an important part of the reforms that reduce the prison population without exacerbating prejudice.”
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The reform organizations that turned against SB10 have conducted their own opposition campaign and claim they have not coordinated with the bail industry. But the bail industry cited some of the same criticisms of the law, including the use of risk assessment tools.
However, Jeff Clayton, executive director of the American Bail Coalition, which raised money for the referendum campaign, said it was not at the heart of the industry’s concerns: “The most obvious reason we don’t like SB10 is that it removes bail. in California.”
The struggle for SB10 has frustrated many of the more moderate reformers who have kept it from the start.
“For 30 years, we have been trying to end cash bail and now we are able to end it,” said Sam Lewis, executive director of the Los Angeles Anti-Recidivism Coalition. “But now, some people don’t want it to end.”
Lewis, who is black, became a reform advocate 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 blacks with the modern bail system.
“Why would I want to continue with a system that at least for blacks is based on racism?” Lewis said.
But Jayadev, of Silicon Valley De-Bug, says the debate has reinforced his belief in changing the system locally.
His organization helps people accused of crimes in Santa Clara County gather support from their families and share their struggles with the judges, an approach that can dissuade judges from bailing. The group has also worked with public defenders to aggressively argue against pre-trial detention.
Santa Clara County already uses a risk assessment tool along with cash bail, but the group’s “participatory defense” strategy adds information that makes the process fairer, Jayadev said.
This kind of hyperlocal work is the future of bail reform, he said.
“From the outside in, it looks like such a simple question of bail or no bail of money,” he said. “But if you lift that patina and see what the goal of ending money bailing is, it’s trying to free people from pre-incarceration. To keep them separate from the system.”
CORRECTION (Oct 17, 2020, 10:28 am ET): An earlier version of this article incorrectly reported the Vera Institute of Justice’s current stance on risk assessment tools. It still works with the jurisdictions that have them; he has not denied them.