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.