Bail Reform: Why Judges Should Reject ‘Risk Assessment’

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If you aren’t following bail reform, you may not be aware that accompanying the attempt to eliminate bail across the country is the touting of “risk assessment tools” to determine who should be detained on bail before trial.

Eric Siddall

The chief proponent of such tools is the Arnold Foundation, which maintains that its own “risk assessment tool” is a cutting-edge way of providing an objective assessment in this area.

The tool’s principal developer, (former New Jersey attorney general Anne Milgram), has said she introduced “rigorous statistical analysis” to the process in order to “moneyball criminal justice.”

Editor’s Note: 38 jurisdictions currently use the tool developed by the Arnold Foundation.

However, the use of this tool has led to the wholesale release of violent criminals—and tragedy.

Three recent examples in New Mexico, New Jersey and San Francisco illustrate my point.

A story published by the conservative website The Daily Wire said the assessment tool has led to virtually every defendant arrested in New Mexico for a violent crime being released without bail.

The story quoted a report from Albuquerque NBC affiliate KOB4, saying, “Even with the highest rate of failing to appear in court and the highest rate of new criminal activity for a defendant, the tool still recommends that person[s] be released on their own recognizance unless the prosecutors have filed for preventative detention.”

In New Jersey, according to the Washington Post, the tool determined that a man jailed for illegally possessing a gun was not a danger and recommended his release. Days later, that man hunted down a rival and shot at him 22 times, killing him. The family of the victim is now suing the Arnold Foundation, amongst others, for the death.

In San Francisco, the online website SFGate reported that a man suspected of murder was released days earlier after being arrested for possession of two guns. According to the website, the judge, relying on the assessment tool, rejected the District Attorney’s office recommendation that the man be kept in jail on a probation violation.

A spokesman for the DA’s office was quoted as saying the use of the tool has caused “many instances of contention.”

He continued: “As it relates to this case along with many other cases, we have a disagreement with how that risk assessment is being calculated. They suggested release with certain conditions, and the judge carried out that recommendation and this defendant was released.”

The Arnold Foundation argues that its tool is needed because “failing to appropriately determine the level of risk that a defendant poses impacts future crime and violence, and carries enormous costs–both human and financial.”

The examples in New Mexico, New Jersey and San Francisco certainly attest to the truth of that statement.

Additional Reading: Risk assessment tools have triggered a contentious debate in the criminal justice community. In June, the Supreme Court refused to hear the case of a Wisconsin man who was sentenced to six years in prison by a judge who consulted the results of a risk assessment algorithm.The plaintiff argued that the use of the algorithm violated his rights to due process. 

The tools represent a threat to the bail bond industry, which has backed two federal lawsuits seeking to end the algorithm’s use.

Eric W. Siddall is Vice President of the Los Angeles Association of Deputy District Attorneys (ADDA), the collective bargaining agent representing nearly 1,000 deputy district attorneys who work for the County of Los Angeles. This is an edited version of an essay that appeared earlier this month on ADDA’s website. Readers’ comments are welcome.

10 thoughts on “Bail Reform: Why Judges Should Reject ‘Risk Assessment’

  1. Mr. Siddall is absolutely correct. These risk assessments are nothing but junk science. How can we really think that a computer program can predict human behavior when it comes to committing crimes and showing up for court? Especially when the data being put into the computer is not even verified. Our criminal justice system has been relying on the experience and knowledge of human beings since our inception and it has worked pretty well. Judges already have the ability to use their discretion and release low level defendants without bond. If they decide not to release a person it is for a good reason…and we need to trust that. Replacing human judgement with a computer program is a step in the wrong direction. Research has already shown that many of these algorithms are unable to filter out racial and socioeconomic bias…the very thing they were designed to do. In my book that is proof of their inability to truly assess risk. If someone is going to be released from jail before their trial, the public deserves to have the person have some financial skin in the game and they deserve to have someone truly supervising that person. Someone who is accountable and who has a vested interest in that person going to court. That is what bail agents do each and every day.

    • What are “low level defendants?” Research has actually shown that human judgment is subject to so many biases, including racial bias! A predictive tool relies on the factors that are shown to predict bail failure. Because one person commits a crime on bail, this tool is now junk?? I GUARANTEE that more people on bail set by judges committed crimes while free, versus those who are free based on a risk assessment.

    • “Our criminal justice system has been relying on the experience and knowledge of human beings since our inception and it has worked pretty well.” No, not at all. In fact, decades of research shows us how flawed people’s decision making can be.

  2. If a release procedure were to be condemned for failing to detain some individuals who go out and commit a new major crime, no one would ever be released. If large numbers of people are released, no matter how you screen them, some will commit new serious offenses. That was true before risk assessment and remains true now. The author of the attack says nothing about the costs of not releasing those who would do just fine if released.

  3. The answer is very simple. If a person cannot afford bail, issue a ticket after 3 days or do the algorithm that was created by Anne Milgram to make her wealthy and noticeable. The bondsman are only there to help after the judges and justice of the peace officers set the bonds. Bondsmen DO NOT SET THE BOND AMOUNT. The bond agent is there to help and aid the person that was released. They also notify and keep one informed of court dates. Bondsmen navigate one from the time of release to final disposition. They also locate and apprehend a person if absent from their notified court appearance. Sitting back collecting large sums of money is not the what bondsmen do. Local offices, paid employees, 100% required bond forfeiture amounts take up much of the moneys collected. Lets see Anne Milgram make an algorithm for the responsible bondsman doing his job!

    • red herring. the issue isnt who gets paid who gets cut out. the issue is life death and commubity afety, and it seems as mucg the way its employed as what it tries to tell us. Theres another one in hot soul soup for racism but no one can find how it creeps in (unintended realityies perhaps?) using zip codes among other criteria to predict who wont show? everybody wants easy answers that let them off the hook! grumph!

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