Advocates of reducing jail populations have persuaded many courts around the U.S. to use tools known as pretrial risk assessments to help judges decide which defendants to release pending the disposition of their cases.
Critics contend that these tools are biased against minorities because they are based partly on suspects’ criminal records in a justice system that has long been accused of practicing racial discrimination.
The latest major critic of risk assessment tools is the Pretrial Justice Institute, a Baltimore-based national reform group.
The institute, which previously supported some use of the tools, on Feb. 7 issued a statement declaring it had now decided that, “Regardless of their science, brand, or age, these tools are derived from data reflecting structural racism and institutional inequity that impact our court and law enforcement policies and practices.
“Use of that data then deepens the inequity.”
The American Bail Coalition, representing the bail bond industry, said, “what took PJI so long to jump on the pretrial risk assessment apology tour is anyone’s guess.”
Research on pretrial risk assessment tools (PRAs) shows, Austin and Naro-Ware contend, that “when applied properly, PRAs do not exacerbate racial and ethnic disparities within pretrial release decisions.
“Rather, there is considerable evidence that PRAs … are superior to subjective/clinical decision-making which tend to over-estimate the risk of pretrial defendants and thus falsely justify their detention.”
The new back-and-forth between the two institutes is sure to intensify the debate in courts nationwide over whether and how assessment tools should be used.
As many jurisdictions consider eliminating cash bail systems that have been blamed for keeping too many needy suspects behind bars unnecessarily, many reformers have touted risk assessment tools as alternatives that can aid judges in deciding which defendants are most likely to appear for future court dates if they are released.
Austin and Naro-Ware argue that places using risk assessment tools should keep doing it because “the processes for their use have been researched, validated and tested for racial and gender biases. While they are not perfect, there is no scientific basis to stop using them.”
Pretrial risk assessment tools have been used since at least the 1960s, when the Vera Institute of Justice tested them in New York City.
More recently, they have been promoted by the Safety and Justice Challenge reform effort, funded by the MacArthur Foundation, in some 25 pilot projects around the nation. (MacArthur says it “has a neutral position on the use of these tools and leaves it up to Safety and Justice Challenge sites to determine what reform strategies are best for their unique jurisdictions, including whether to implement a risk assessment tool.”)
The most frequently used version is the “Pretrial Safety Assessment” tool launched nationwide in 2018 by the Laura and Jay Arnold Foundation, now Arnold Ventures, and used at 18 sites, Austin and Naro-Ware say.
The two consultants agree that there are racial, gender and other biases in the
deployment of police, arrest, charging, detention, and sentencing practices. But that does not mean all arrests, convictions and sentences are biased, they say.
Ending the use of risk assessment tools, declare Austin and Naro-Ware, “would be akin to disallowing the use of any prior conviction data for any court decision. In essence, a multiple domestic violent, DUI, or drug distribution offender would be treated the same as a first-time defendant.”
Instead of eliminating risk assessment tools, they say, those who design them must “endeavor to ensure that any form of implicit bias is reduced to its lowest level.” Their paper suggests various ways to achieve that result.
The consultants’ arguments don’t seem likely to persuade the Pretrial Justice Institute (PJI), which says its examination of jurisdictions that have used the tools showed that “some places saw significant increases in pretrial liberty, but many did not, and racial disparities persisted in both. We were wrong for having risk tools as part of our ‘smart’ pretrial justice framework.”
In PJI’s view, local criminal justice systems should pursue “other strategies for pretrial justice reform.”
That includes, it says, “expanded use of citations, adversarial detention hearings for a limited number of serious charges, and addressing people’s needs (as opposed to risk) through community-based support.”
Ted Gest is president of Criminal Justice Journalists and Washington Bureau Chief of The Crime Report.