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

The US justice system’s bail movement will face a crucial test on Nov. 3, when California voters will 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 it. to be released before trial.

If the vote measure, known as Proposal 25, passes, California will be followed by dozens of counties and several states that have adopted “risk assessment tools” designed to bring more justice to the pre-trial justice system. Traditionally, this system relies on the payment of cash or bonds to ensure that defendants return to court ̵

1; which keeps poor people locked up or in debt to save bondholders.

The victory of the referendum will come at a crucial time for reform advocates trying to meet public demands for change following the May 25 assassination of George Floyd by Minneapolis police.

But the vote also comes at a time of growing skepticism about using 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 warn that algorithms – which use a person’s past and history data to determine a risk assessment – can exacerbate discrimination. Blacks, for example, are arrested at higher rates than whites, making them more likely to get higher risk scores 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 Judicial Justice Institute, disavowed risk assessment tools. Some have launched a campaign against the California vote, targeting former allies who see the bailout reform plan as a golden opportunity to end a practice that criminalizes poverty – and put them on the same side as the bail-in industry. the measure.

The debate in California reflects a national calculation of the use of algorithms as a “substitute” for bail reformers, said John Raffling, a senior human rights researcher at Human Rights Watch, who opposes proposal 25.

“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 pose a huge danger to the goals of the guaranteed reform movement. It is a movement to reform the pre-trial system, to reduce the number of people detained in pre-trial proceedings and to reduce the discriminatory impact. “

The case against bail

The guarantee is a cornerstone of the American criminal justice system, enshrined in the Rights Act, established in popular culture and resistant to change.

In theory, it gives most defendants, who are presumed innocent before the trial, a chance to remain at large while their cases continue. Judges usually determine payments by consulting bail schedules that determine the amount of the charge, examining the defendant’s criminal record and home life, and relying on their own experience and intuition. Those who cannot afford to pay can look for a bondholder willing to borrow the money.

Or they can sit in jail.

The number of people behind bars awaiting trial has increased since the 1980s, reaching 470,000 in 2017. Most are accused of non-violent crime, and a disproportionate number are blacks. Pre-trial detention can be devastating: Going to prison makes someone more likely to lose their job, their home and custody of their children. Desperate to get away, they are more likely to plead guilty to something they did not do. This makes them vulnerable to the lifelong economic consequences of a criminal conviction.

Philanthropic organizations, private companies, judges and legislators have turned to algorithms as a solution, saying that risk assessment tools can eliminate the arbitrariness, subjectivity and inconsistencies of the existing system. The tools vary widely, but usually use information about human life, demographics and previous criminal records. This has raised concerns about the biased bias, which leads to unfair risk assessments.

One of the biggest test cases is New Jersey, which replaced bail with a risk assessment tool in 2017. The number of people left in prison awaiting trial there has dropped 27 percent since then. But racial differences have not diminished.

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 shortcomings”, including reading criminal history data that provided “distorted” risk forecasts. Another team of researchers argues that the tools do not reduce racial disparities among people imprisoned pending trial, and may actually exacerbate gaps.

These warnings are beginning to take effect.

In January, the Ohio Supreme Court chose not to recommend risk assessment tools in a guarantee reform report that is said to be influenced by arguments about racial bias from the ACLU.

A month later, the non-profit Judicial Justice Institute, which for years persuaded jurisdictions across the country to accept the instruments, reversed the course and disavowed them, saying they were “derived from data reflecting structural racism and institutional inequality.”

“The idea that people are inherently risky needs to change,” said Megan Guevara, an executive partner at the Institute for Judicial Justice. “The problem with risk assessment tools is that they are all classified as having some risk.”

Proponents of anti-algorithm reforms prefer alternatives that remove detention for most nonviolent crimes, 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 in New York this year that removes pre-trial detention and bail in most crimes and nonviolent crimes without using a risk assessment tool.

“New York is a model for how to get a cash guarantee primarily from the equation,” said Insha Rahman, vice president of advocacy and partnerships at the Vera Institute of Justice.

Separation of algorithms

The change in thinking about risk assessment tools has had a dramatic effect in California.

The popularity of the instruments was growing in December 2016, when MPs from the democratic state introduced a bill that would end the cash guarantee. Defenders 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,” recalls Raj Jayadev, head of the community’s San Jose community 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 the risk assessment tools, but the amendments gradually gave more power to the technology, as well as to the judges, who could order someone detained indefinitely before the trial. This prompted many supporters, including Silicon Valley De-Bug, to withdraw their approvals. But the bill, known as SB10, was passed after that – Gov. Jerry Brown signed it into law in August 2018.

Raj Jayadev, director of Silicon Valley De-Bug, spoke during a rally on bail reforms in front of the Santa Clara County Justice Hall in February 2018 in San Jose, California.Karl Mondon / MediaNews Group via Getty Images file

“The SB10 has put people between a rock and a hard place,” said Lex Stapling, director of campaigns and policy at Dignity and Power Now, a Los Angeles-based NGO that called on Brown to veto the bill.

Steppling called the risk assessment tools a “postmodern version” of retraining, the discriminatory policies used by financial companies to classify Black Sea neighborhoods as unfit for investment.

The warranty industry, facing extinction in California, has launched a campaign to exclude the new law. He has collected enough signatures to put it before voters, who will decide on November 3rd whether it will ever take effect.

The campaign against the measure, largely funded by the guarantee, the insurance companies that finance it, and the state Republican Party raised more than $ 8 million. Supporters have raised more than $ 6 million, mostly from billionaire John Arnold, whose Arnold Ventures has developed a risk assessment tool used in New Jersey and dozens of U.S. jurisdictions, Los Angeles Clippers owner Steve Ballmer, the State Democratic Party and state unions.

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

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Reform organizations that have turned against SB10 have run their own opposition campaign, saying they have not coordinated with the guarantee industry. But the safeguards industry cites some of the same criticisms of the law, including reliance on risk assessment tools.

Jeff Clayton, chief executive of the US Coalition Coalition, which raised money for the referendum campaign, said this was not the industry’s concern: “The most obvious reason we don’t like SB10 is that it is removing guarantees in California. “

The struggle for the SB10 has disappointed many of the more moderate reformers who have adhered to it from the beginning.

“We’ve been trying to end the bail for 30 years, and now we’re able to end it,” said Sam Lewis, executive director of the Los Angeles-based coalition to fight recidivism. “But now some people don’t want to stop it.”

Lewis, a black man, became a proponent of reform after his release from prison in 2012 for a gang-related murder committed as a teenager. He sees a direct line from slavery to the post-emancipation laws used to impoverish and persecute blacks against the modern guarantee system.

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

But De-Bug’s Silicon Valley Jayadev 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 get family support and share their struggles with judges, an approach that can dissuade judges from imposing bail. The group has also worked with public defenders to argue aggressively against detention.

Santa Clara County already uses a money guarantee risk assessment tool, but the group’s “defense of participation” strategy adds information that makes the process fairer, Jayadev said.

This kind of hyperlocal work is the future of guaranteed reform, he said.

“From the outside it looks like a simple question – a cash guarantee or no money guarantee,” he said. “But if you lift this veneer and look at the purpose of ending the bail, it is trying to free people from pre-trial detention. To protect them from the system. “

CORRECTION (October 17, 2020, 10:28 AM ET): A previous version of this article misrepresented the current position of the Vera Institute of Justice on risk assessment tools. It still works with jurisdictions that have them; he did not deny them.

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