In 2011, as part of a criminal justice reform package meant to reduce incarceration, Kentucky became among the first states to require judges to use a risk assessment as part of their pretrial decisions. Similar risk assessments have proliferated as jurisdictions that have decided cash bail is unjust and potentially unconstitutional have had to grapple with the circumstances in which to detain people who are too poor to come up with the money. As community bail funds received an outpouring of donations to release thousands of people arrested during anti-police brutality protests after George Floyd’s killing, the underlying inequities of bail reform measures are getting a closer look, The Intercept reports.
Criminal justice reform advocates have raised the alarm about risk assessments, arguing that the tools are based on questionable data that cannot accurately predict someone’s actions after release and often reproduce racial disparities already in place. What little success risk assessments have achieved has been undercut by judges who appear to ignore recommendations and legislators attempting to exacerbate their defects. In many places, risk assessment has become “a totally political, manipulated, secret process,” said Pilar Weiss of the Community Justice Exchange, a criminal justice reform advocacy group. After risk assessments first were made mandatory in Kentucky, there was a 13 percent increase in people released without having to post bail. That effect quickly wore off. “Judges were going back to their prior ways,” said Megan Stevenson, a law professor at George Mason University and author of a 2018 study. There are also disparities by race. A 2019 study found that Kentucky judges are more likely to override moderate risk scores in order to set cash bail for Black defendants than for white defendants.