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THE END OF BAIL – ARE RISK-ASSESSMENT TOOLS BIASED?

With the coming end to money bail, California courts will be mandated to rely on risk assessment conducted by Pretrial Assessment Services (PAS). Risk assessment, as mandated by the new law, will categorize those arrested for a crime as high, medium, or low risk in terms of the likelihood that the alleged offender will return to appear in court and the risk the alleged offender poses to the public. Each alleged offender will receive a “risk score” and depending upon that score, the defendant may be released on his or her own recognizance or may be held in jail.  Those charged with a misdemeanor (with certain exceptions) will not be subject to the assessment and will be released on their own recognizance.

But this blog post is not about the new law, but about “risk assessment.” How will PAS make the risk assessment? The new law requires PAS to rely on a “validated risk assessment tool” approved by the court from a list of such tools that are maintained by the Judicial Council. Orange County, as will each county in California, chose what tool to use from those approved by the Council. The tools must be scientifically validated for their accuracy and reliability in assessing the alleged offender’s risk. These tools are algorithm-basedand calculate risk based on the alleged offender’s criminal history and other personal factors plus general criminal justice data. The data input, depending on the tool, may include more than 100 factors, which are weighted according mathematical formulas to assess an alleged offender’s risk. This use of artificial intelligence to determine who gets out of jail and who doesn’t is not without controversy and opposition. Indeed, over 100 civil rights-related organizations opposepretrial risk assessment, including the ACLU and NAACP.

Sometimes a person is arrested for a crime they did not commit. In the nightmare scenario, they are charged and maybe even convicted. But often the prosecutor declines to prosecute or, if charged, the charges are dismissed or the person is acquitted.

For example, say you are at a party and someone starts a fight. You are in the fray but only as a spectator. You do not throw a single punch or otherwise harm anyone, but some of the participants are injured. The police arrive and you find yourself arrested for aggravated assault, which is a serious charge. The subsequent police investigation exonerates you: plenty of witnesses tell the investigators that you were not one of the participants but only standing on the sidelines. The district attorney recognizes that there is no reason to pursue charges against you. All you suffered is the arrest and nothing else; you are in the clear, right?

Not exactly. That arrest is now on your otherwise pristine California Department of Justice criminal history record (commonly called a “rap sheet”). In the era of instant information, having an arrest show on your criminal record means that current and future employers may find out about it, your school may learn of it, even your landlord may know. Furthermore, if you have a job that requires a state or federal license or clearance, the arrest may affect your job or future application for such a job.

THE ULTIMATE PUNISHMENT

California is one of 30 states in which the death penalty is legal. In the last election, California voters voted to keep capital punishment legal (Proposition 62) and, beyond that, voted to speed up the process (Proposition 66). Proposition 62 would have replaced the punishment for those convictions under which a person could be sentenced to death to life imprisonment without the possibility of parole. The California voters soundly defeated this proposition with 53% of the voters voting nay. A corollary proposition, Prop 66, approved by 51% of the voters, shortens the time a death row inmate can take to appeal his or her sentence to a maximum of five years. Opponents of Proposition 66 have filed a lawsuit in the Californian Supreme Court challenging the legality of Proposition 66. That lawsuit is pending.

So what is the fate of an estimated 750 death row inmates presently sitting out their time in California prisons? The last time a person was executed in California was in January 2006, when 76 year old Clarence Ray Allen was put to death by lethal injection. A month after Mr. Allen’s execution, the U.S. District Court blocked a scheduled execution after a lawsuit was filed challenging the lethal injection protocol as cruel and unusual punishment. Since this challenge, there has been an almost eleven year stay on lethal injections in California. That stay was challenged in 2010, but the Ninth Circuit Court of Appeal ruled that the stay continued to apply. Even though no one has been executed in this state since 2006, prosecutors continue to ask for the death penalty and new death row inmates are added to the prison population every year.

As most people know, codependency exists where one person supports another person’s addiction, anger or other psychological weakness. In the criminal context this unbalanced relationship rears its head very frequently. To the extent a parent or other loved one unequivocally and unreservedly supports the weakness of a child or other loved one, the cycle of codependency renews itself.

In my practice, I am presented on almost a daily basis with a parent of an adult child overcompensating for the child’s deficits. The hallmark of a codependent relationship is a lack of bilateralism, that is that the parent and child, regardless of the age of the child do not share in the responsibilities of their daily lives. Often times, the parent tries to explain away, justify or otherwise limit the moral or ethical responsibilities of his or her child.

Codependent people typically lack self-esteem and seek external influences to make themselves feel better. Typically, this is most often seen in alcohol or drug dependency. Sometimes though, it can rear its head in domestic violence settings.

In California, current law prohibits both public and private employers from asking an applicant to disclose any information concerning an arrest or detention that did not result in a conviction. Further, as of July 1, 2014, all state and local agencies are prohibited from asking applicants to disclose information regarding criminal convictions, with some exceptions, until it has been determined that the applicant meets the minimum employment qualifications for the position.

Exceptions include: Peace Officers, Court Employees, Prosecuting Attorneys, Public Defenders, Health Officers, Child Support EE’s, Child Care Providers, IHSS Workers, Park, Playground, Rec Center EE’s and Residential Care Facility EE’s.

Recognizing that the barriers to employment for people who have criminal convictions increases unemployment and increases the risk of individuals reoffending, the Legislature has found that reducing the barriers will decrease unemployment and improve economic stability in communities.

St. Paul, Minn has a new bill that may someday make it’s way to California. It is called the criminal records expungement bill. The bill will allow those convicted of misdemeanors and some low-level felonies, to get their criminal records sealed.

The idea behind the new law is designed to help people go forward with their lives and help with potential jobs and housing. There are many companies who have policies against hiring people with a criminal record, even if that record is 20 years old. The mistakes people make when they are young follow them around for the rest of their lives and in many cases, prevent them from getting good jobs.

During the signing ceremony, a woman spoke of how two misdemeanor convictions, when she was 18 and 20, have derailed her getting hired with good companies. Even though she has changed her life and worked her way through college, her criminal background continues to hold her back. She earned a marketing degree but lost out on good jobs once a background check was done.