In its first year, New Jersey’s historic bail overhaul slashed the number of people charged with minor crimes locked up until trial because they couldn’t post bail by 20 percent. Yet the system is “simply not sustainable” because it relies on court fees rather than the state budget, a report from the New Jersey judiciary says.
In its first year, New Jersey’s historic bail overhaul slashed by 20 percent the number of people charged with minor crimes locked up until trial because they couldn’t post bail, according to a new report from the state judiciary, says NJ.com.
The problem is that the new system is already going broke.
Last year, New Jersey all but eliminated cash bail, moving to a system where judges can order defendants jailed based in part on a risk assessment that weighs the suspect’s criminal history and the charges they face. The dramatic transformation created “a more comprehensive, reasonable, and most importantly, a fairer system of pretrial release,” says the new report.
“New Jersey has successfully transformed an antiquated money bail system into a modern, risk-based system that relies on empirical evidence to better identify the risk a defendant poses,” says Judge Glenn Grant, acting judiciary administrator.
The report warned that the new system is “simply not sustainable” and faces a “substantial annual structural deficit” because of its funding mechanism, which relies on court fees rather than the state budget. At the beginning of this year, the judiciary was spending more on the program than it was collecting in fees and is still expected to hit the wall within a year.
The findings portray an uncertain financial future for the new system, a top achievement of former Gov. Chris Christie’s administration. The changes drew broad support within state government but derision from local law enforcement and some community leaders, who argued it allowed the release of too many people accused of serious crimes.
If you are released ahead of your trial date, you’re 14 percent less likely to be found guilty, according to an American Economic Review study. Compared to those who can’t make bail and are held in pretrial detention, your economic outlook is better too, researchers concluded in a study of court records in Philadelphia and Miami-Dade counties.
If you are released ahead of your trial date, you’re 14 percent less likely to be found guilty, according to an American Economic Review study. Compared to those who can’t make bail and are held in pretrial detention, your economic outlook is better too, researchers concluded in a study of court records in Philadelphia and Miami-Dade counties.
Larger effects were observed for individuals with no prior offenses in the previous year.
The study authors, noting that “little is known about the impact of pretrial detention,” examined data linking over 420,000 individuals arrested and charged for criminal offenses to administrative court and tax records in Philadelphia County between 2007 and 2014, and Miami-Dade County between 2006 and 2014.
They concluded that while pretrial detention may benefit society in some circumstances “by increasing court appearances or by reducing future crime,” the long-term benefits to both individuals and society may balance those risks.
Their paper, entitled “The Effects of Pretrial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges,” found that individuals released before trial “are substantially less likely to be convicted of any offense due to a reduction in guilty pleas.”
They also found “that those who are released pretrial receive more favorable plea deals than those who are detained.”
The study concludes by conducting a partial cost-benefit analysis that “accounts for administrative jail expenses, costs of apprehending defendants, costs of future crimes, and economic impacts on defendants.” The researchers estimate that the net financial benefit to the charged individual of pretrial release at the margin (cases in which bail judges disagree about bail conditions) is between $55,143 and $99,124 per individual.
Citing figures showing that more than half a million individuals are detained before trial on any given day—the world’s highest pre-incarceration rate—the authors said it was worth considering policy alternatives that kept people out of detention until their trial date.
“Our results suggest that it may be welfare-enhancing to use alternatives to pretrial detention, at least on the margin,” the authors said. “For example, to the extent that recidivism rates are not appreciably higher than under pretrial detention, electronic monitoring may provide many of the same benefits of detention without the substantial costs to defendants documented in our analysis.”
The authors of the paper, published in the February 2018 issue of the American Economic Review were Will Dobbie, Assistant Professor of Economics and Public Affairs at Princeton University; Jacob Goldin, Assistant Professor of Law at Stanford University; and Crystal S. Yang, Assistant Professor of Law at Harvard Law School.
Leaders of the campaign to close New York’s notorious Rikers Island jail are celebrating the announcement that one of the facility’s nine detention centers will be closed this year. But they said that fundamental justice change requires reform of the money bail system.
A month after New York City Mayor Bill de Blasio announced the closure of one of Rikers Island’s detention centers by this summer, grass-roots activists who powered the movement said fundamental change in criminal justice policies required reform of the bail system.
The creation of “a fairer, more just pretrial system that ends money bail” was critical to long-term change in New York State, a Jan. 30 “victory” rally held at the New York Society for Ethical Cultural in Manhattan.
“No one should be held just because they can’t come up with the money for bail,” activist Marilyn Reyes-Scales said at the rally.”It’s become a ransom people have to pay to get out of jail.”
Activists at the Rikers rally on Jan. 30th expressed pride in their success and determination to keep pushing for criminal-justice reform. Photo by David Etheridge-Bartow
Pointing out that almost 70 percent of the people held in New York State jails have not been convicted, Reyes-Scales said, “This isn’t Monopoly—they’re playing with real people’s lives!”
The Jan. 2 announcement that the George Motchan Detention Center, which currently houses nearly 600 men, will be the first of Rikers’ nine jails to shut its doors later this year was the first step in a phased closing down of the jail complex that’s projected to take 10 years.
Often ranked as one of the 10 worst jails in America, Rikers Island, which now houses about 6,800 people and at its most overcrowded held 20,000, was the target of the #CLOSErikers campaign, which grew in strength as it organized rallies and marches beginning in 2016—including a march in September 2016 on the bridge leading to the 400-acre island itself, which sits in the East River between Queens and the Bronx.
There have been complaints of civil-rights violations, corruption, violence, and excessive use of force at the jail.
“The time has come to close Rikers Island,” co-wrote Judge Lippman and City Council Speaker Melissa Mark-Viverito in a widely read New York Times article following the report’s release.
Rikers, a “de facto penal colony” and a “stain on our great city’s reputation,” has problems “that run too deep” to be “fixed with a fresh coat of paint, new trainings or even a major facilities overhaul,” they wrote.
At the Ethical Cultural rally, speakers exulted over Mayor de Blasio’s post-Lippman-commission announcement that it would now be “the official policy of the city of New York to close Rikers Island,” while pointing out the earlier instances when “he tried to hide from us,” and stressing that 10 years is way too long to wait.
“We demanded (that) the world see the hell that was on that island,” said community activist Shanequa Charles, claiming their campaign “changed the national conversation about criminal justice.”
But speakers said Rikers’ documented miseries are only one part of the problem with criminal justice in New York State.
City Comptroller Scott Stringer decried the “commercial bail industry” and said, “Judges play a role in this—there are more humane ways to treat people. A judge can change a person’s life. We need to hold judges accountable.”
Rikers Island victory rally Jan 30. Photo by David Etheridge-Bartow
As they push for an accelerated closure of Rikers Island, leaders of the grass-roots campaign said they will look to Governor Andrew Cuomo in his next budget to “commit to ending mass incarceration in New York and include gold standard bail, speedy trial and discovery law reform proposals.”
“Those closest to the problem are closest to the solution,” said Brandon J. Holmes, the #CLOSErikers campaign coordinator.
“Probation and parole are tools that the criminal justice system has used to target my community,” said Vidal Guzman, JustLeadershipUSA Community Organizer.
“These are traps that keep fueling a cycle of criminalization and poverty across our city and state. I know from my own experience on parole how much we need to change these systems. That is why we’ll keep organizing directly impacted communities that can bring attention to the need for reforms that limit probation and parole sentences and use the least restrictive versions of supervision whenever it is used.”
Nancy Bilyeau is Deputy Editor (Digital) of The Crime Report. She welcomes readers comments.
The sentencing overhaul championed by Gov. Bruce Rauner has already cut inmate numbers by 7,000. But reforms at the county level, influencing who goes to prison in the first place, have been a critical ingredient in the state’s success—and could be a model for jurisdictions elsewhere.
As states grapple with persistently high incarceration numbers, with more than two million people still in prisons and jails nationwide, the main focus has been on the back end of the justice system: reducing the time inmates stay behind bars.
Some reformers are urging a similar focus on the front end: incarcerating fewer people in the first place.
One state that is trying to do both, with some success, is Illinois.
Gov. Bruce Rauner has set an ambitious goal of cutting the prison rolls 25 percent by 2025. Illinois’ incarcerated population jumped from fewer than 10,000 inmates three decades ago to more than 48,000 in 2015—the nation’s eighth largest state inmate total. Providing cells, food, medical care and other services costs taxpayers $1.3 billion annually.
Under Rauner’s policies, the state has already cut that number by almost 7,000.
If prison is the caboose of the criminal justice train for offenders, the local criminal justice system is the engine, the place where decisions are made on who goes to prison.
One of the first Criminal Justice Coordinating Councils (CJCC) was started in central Illinois’ McLean County in 2011 to address chronic overcrowding at the county jail.
At the time, McLean ranked highest among the state’s 20 largest counties in its rate of sending drug defendants to state prison, with a total of 92.1 per 100,000 residents, according to Malcolm C. Young, former Executive Director of the John Howard Association of Illinois, who studied variations in crime and arrest rates and commitments to state prisons among Illinois counties when he directed a program on prison reentry strategies at the Bluhm Legal Clinic of Northwestern University.
The McLean coordinating council, comprising elected and appointed policy makers, community members, attorneys, and law enforcement officials, met around the same table for the first time to examine the strengths and shortcomings of the local system.
“The CJCC erased the boundaries between the departments as we all worked together for the overall criminal justice system,” former County Sheriff Mike Emery, who helped initiate new policies to prune the jail population, said in a recent interview. Emery did not seek re-election in 2014 and now is law enforcement coordinator for the U.S. Attorney’s office in Springfield, Illinois.
Emery started the practice of letting judges and other decision makers know when his jail was nearing capacity, putting more emphasis on the possible release of low-level offenders at bond hearings. The decision of who would be released remained with judges, but the sheriff’s alert added jail population to the court’s list of considerations.
Defendants’ participation in a pre-trial release program allowed them to build a record of conduct for use later in their cases, he said.
The pre-trial release reports “gave judges more options than incarceration,” when it came to sentencing, he added.
Before the reform measures, inmates who were unable to pay as little as $100 to be released on bail sat for months while their cases moved slowly through the court system.
Former McLean County Sheriff Mike Emery, who helped establish the Criminal Justice Coordinating Council. Photo by Lori Ann Cook-Neisler/The Pantagraph
In one of his first alerts to the chief judge, Emery pointed out that ten inmates were in jail on ordinance violations— the lowest form of criminal conduct. Now defendants on such infractions and similar non-violent offenses require only their agreement to appear for future court dates to avoid a jail stay, a major change in previous policy.
Data compiled by the McLean County justice council has since documented major changes in the jail population that reflect changes in both the number of inmates and the composition of the jail’s population.
By 2015, as jail usage began to tip significantly towards serious felony defendants, the total bed days for low-level felonies and misdemeanors—a measurement of overnight stays—were down an average of about 30 percent compared with 2007.
The county’s crime rate was also decreasing during this period, and police agencies have reported fewer arrests this year. The county’s total of 1,462 felony cases filed in 2016 was slightly below the previous year but generally were up since 2011, when about 1,100 felonies were charged.
The shift in McLean County to using the county jail mostly for holding defendants charged with the most severe offenses is a likely contributor to the lower numbers sent to state prison, David Olson, co-director of the Center for Criminal Justice Research, Policy and Practice at Loyola University in Chicago,who served on Rauner’s commission, said in an interview.
“We know from research that if people are not detained pre-trial, their chances of going to prison are less,” Olson said.
The ability to remain out of jail while a case is pending allows people to keep their jobs, take care of their families and, in some cases, begin efforts to address mental health and substance issues that may have contributed to their offenses. Defendants also have greater opportunity to meet with their lawyers and assist with their defense when they are not sitting in jail.
Illinois Adult Redeploy, a state program that grants funds to community-based county-level services, provides financial incentives for counties to divert people from prison by keeping them in the community. It also played a part in reducing the number of defendants McLean County sends to state prisons each year. The state program returns money to communities to invest in local efforts in exchange for reducing the number of people sent to prison.
There also has been a policy shift towards probation as the preferred disposition in non-violent criminal cases. The move to provide defendants with several chances to succeed before sending them to prison has the support of all levels of the local justice system, including the judiciary, whose representatives serve on the council.
Cassy Taylor, director of McLean County Court Services and a member of the council, said in an interview the collaboration between local and state agencies “creates data-driven decision making, so we are making smart decisions with the resources we have.”
The result, added said Taylor, is an agreement on what she terms “the philosophy of community corrections.”
The preliminary results of these changes have been promising, according to data compiled recently by The Pantagraph from local circuit court records. Between 2011 and 2016, there was a steady decrease in the percentage of convicted defendants from McLean County sentenced to state prison. In 2011, 42 percent went to prison and 57 percent were put on probation. By 2016, 29 percent of convicted felons were sent to prison and 70 percent went on probation.
In all, state prison admissions from the country dropped from 385 in 2011 to 293 in 2016, court data showed.
Loyola’s Olson has been studying the impact of local criminal justice councils on justice systems in five Illinois communities, including McLean County.
The reduction in the number of McLean defendants heading to prison is indicative of what collaboration can accomplish, said Olson. “You’ve got this drop in admissions to prisons because in part they’re using prison less as a sanction,” he said.
Redeploy Illinois helped Kenneth Williams get back on his feet in 2013 following legal problems. The program offers financial incentives to counties in return for keeping offenders in community-based programs instead of prison. Photo by David Proeber/The Pantagraph
Almost seven years after it started, the McLean County council is still going strong. At its mid-January meeting in the local government center, members reviewed a report on the numbers of mentally ill people booked into the jail.
The broad base of knowledge developed by the council since its inception on the inner workings of the criminal justice system supports robust discussion on what the numbers mean—something that was not possible before 2011.
Illinois officials hope that four other counties that have created local criminal justice counties with the help of the state will have results similar to McLean County’s.
The local councils are just one ingredient in Illinois’ effort to cut its prison population.
Another is a sentencing reform law that that went into effect Jan. 1. Several provisions allow defendants who violate conditions of probation to be jailed locally instead of going to state prison. Another section provides that cases of minor offenders who would normally spend about nine months in state prison remain in counties instead, under probation supervision.
The law also allows state prison officials to give “supplemental sentencing credits” that offer an expanded group of inmates reduced prison stays for taking part in rehabilitation programs behind bars.
Finally, the law repealed mandatory prison terms for selected offenses, many of them drug crimes.
James Austin, a consultant based in Washington, D.C. and California who has studied the Illinois correctional system, estimates that the law’s provisions will reduce the state prison rolls by between 5,000 and 7,000, depending on how it is implemented across the state.
Overall, Austin says, the prison total could drop to 35,400 by 2024, a 27 percent reduction under Rauner’s governorship.
The new Illinois law was termed “unique” by Lenore Anderson, president of the national Alliance for Safety and Justice, which advocates for survivors of crime, because it combines state-level and local reforms and adds new aid for crime victims.
“This is a model that other states should take a look at,” she said.
The Illinois reforms also got national recognition when the state was one of the first three chosen to take part in an ongoing National Criminal Justice Reform Project sponsored by the National Criminal Justice Association (NCJA) and the National Governors Association (NGA) to promote system-wide criminal justice reform that requires on evidence-based policies.
“Illinois’ work provides a good example of how states can better support and partner with local entities to address crime and strengthen public safety,” says NCJA’s Tammy Woodhams.
Much criminal justice reform in recent years has been focused exclusively on governors and state legislatures, who have the power to set maximum prison terms and to have much control over the amount of time prisoners end up spending behind bars.
Young, who studied Illinois counties’ justice practices, said that “all criminal justice is local,” adding that justice policies are “highly individualized among localities,” and that “extensive variations in government responses demonstrate the significant part local discretion and preference play in determining how criminal justice resources, including prison incarceration, are allocated.”
Eric Cadora, of the New York City-based Justice Mapping organization, originated the term “justice reinvestment” that is now used as shorthand for cutting prison populations and using the money saved for providing services to offenders.
Cadora welcomes state-level reforms but says that local criminal justice systems like those in McLean County also should be a key source of changes.
“Local jurisdictions are in a unique position to share the risk for … substantial reform efforts because they are more directly accountable for both the potential costs and benefits associated with the impact of such reforms on their constituents,” he said.
This story is jointly published as a partnership between The Pantagraph and The Crime Report. Edith Brady-Lunny covers crime and justice affairs for The Pantagraph in Bloomington, Il., and is a former John Jay Justice Reporting Fellow. Ted Gest is president of Criminal Justice Journalists and Washington Bureau Chief of The Crime Report. They welcome comments from readers.
Critics charge that despite claims of objectivity, algorithms reproduce existing biases, disproportionately targeting people by class, race, and gender. Reformers say another New York City bill, the Right to Know Act, doesn’t go far enough.
New York City is taking steps to address algorithmic bias in city services. The City Council passed a bill that will require the city to address bias in algorithms used by the police department, courts, and dozens of city agencies, Vice reports. The bill would create a task force to figure out how to test city algorithms for bias, how citizens can request explanations of algorithmic decisions when they don’t like the outcome, and whether it’s feasible for the source code used by city agencies to be made publicly available.
Criminal justice reformers and civil liberties groups charge that despite claims of objectivity, algorithms reproduce existing biases, disproportionately targeting people by class, race, and gender. A Pro Publica investigation found that a risk assessment tool was more likely to mislabel black than white defendants. Studies have found facial recognition algorithms were less accurate for black and female faces.
Critics of predictive policing—which uses statistics to determine where cops should spend time on their beats—say it reinforces existing biases and brings cops back to already over-policed neighborhoods.
Rachel Levinson-Waldman of the Brennan Center of Justice said New York’s police department refuses to disclose the source code for the predictive policing program, claiming it would help criminals evade the cops. (Three academics argue in the New York Times that even imperfect algorithms improve the justice system.) The City Council on Tuesday approved the Right to Know Act, which requires changes to day-to-day interactions between police officers and those they encounter.
The measures drew opposition from criminal justice reform groups and the city’s largest officers’ union, the New York Times reports. Reformers said the bill omitted many common street encounters, including car stops and questioning by officers in the absence of any reasonable suspicion of a crime.
Early evidence suggests some risk assessment tools offer promise in rationalizing decisions on granting bail without racial bias. But we still need to monitor how judges actually use the algorithms, says a Boston attorney.
Next Monday morning, visit an urban criminal courthouse. Find a seat on a bench, and then watch the call of the arraignment list.
Files will be shuffled. Cases will be called. Knots of lawyers will enter the well of the court and mutter recriminations and excuses. When a case consumes more than two minutes you will see unmistakable signals of impatience from the bench.
Pleas will be entered. Dazed, manacled prisoners—almost all of them young men of color—will have their bails set and their next dates scheduled.
Some of the accused will be released; some will be detained, and stepped back into the cells.
You won’t leave the courthouse thinking that this is a process that needs more dehumanization.
But a substantial number of criminal justice reformers have argued that if the situation of young men facing charges is to be improved, it will be through reducing each accused person who comes before the court to a predictive score that employs mathematically derived algorithms which weigh only risk.
This system of portraiture, known as risk assessment tools, is claimed to simultaneously reduce pretrial detentions, pretrial crime, and failures to appear in court—or at least that was the claim during a euphoric period when the data revolution first poked its head up in the criminal justice system.
We can have fewer prisoners and less crime. It would be, the argument went, a win/win: a silver bullet that offers liberals reduced incarceration rates and conservatives a whopping cost cut.
These confident predictions came under assault pretty quickly. Prosecutors—represented, for example, by Eric Sidall here in The Crime Report—marshaled tales of judges (“The algorithm made me do it!”) who released detainees who then committed blood-curdling crimes.
Other voices raised fears about the danger that risk assessment tools derived from criminal data trails that are saturated with racial bias will themselves aggravate already racially disparate impacts.
A ProPublica series analyzed the startling racial biases the authors claim were built into one widely used proprietary instrument. Bernard Harcourt of Columbia University argued that “risk” has become a proxy for race.
A 2016 study by Jennifer Skeem and Christopher Lowenkamp dismissed Harcourt’s warnings as “rhetoric,” but found that on the level of particular factors (such as the criminal history factors) the racial disparities are substantial.
Meanwhile, a variety of risk assessment tools have proliferated: Some are simple checklists; some are elaborate “machine learning” algorithms; some offer transparent calculations; others are proprietary “black boxes.”
Whether or not the challenge of developing a race-neutral risk assessment tool from the race-saturated raw materials we have available can ever be met is an argument I am not statistician enough to join.
But early practical experience seems to show that some efforts, such as the Public Safety Assessment instrument, developed by the Laura and John Arnold Foundation and widely adopted, do offer a measure of promise in rationalizing bail decision-making at arraignments without aggravating bias (anyway, on particular measurements of impact).
The Public Safety Assessment (PSA), developed relatively transparently, aims to be an objective procedure that could encourage timid judges to separate the less dangerous from the more dangerous, and to send the less dangerous home under community-based supervision.
At least, this practical experience seems to show that in certain Kentucky jurisdictions where (with a substantial push from the Kentucky legislature) PSA has been operationalized, the hoped-for safety results have been produced—and with no discernible increase in racial disparity in outcomes.
Unfortunately, the same practical experience also shows that those jurisdictions are predominately white and rural, and that there are other Kentucky jurisdictions, predominately minority and urban, where judges have been—despite the legislature’s efforts—gradually moving away from using PSA.
These latter jurisdictions are not producing the same pattern of results.
The judges are usually described as substituting “instinct” or “intuition” for the algorithm. The implication is that they are either simply mobilizing their personal racial stereotypes and biases, or reverting to a primitive traditional system of prophesying risk by opening beasts and fowl and reading their entrails, or crooning to wax idols over fires.
As Malcolm M. Feeley and Jonathan Simon predicted in a 2012 article for Berkeley Law, past decades have seen a paradigm shift in academic and policy circles, and “the language of probability and risk increasingly replaces earlier discourse of diagnosis and retributive punishment.”
A fashion for risk assessment tools was to be expected, they wrote, as everyone tried to “target offenders as an aggregate in place of traditional techniques for individualizing or creating equities.”
But the judges at the sharp end of the system whom you will observe on your courthouse expedition don’t operate in a scholarly laboratory.
They have other goals to pursue besides optimizing their risk-prediction compliance rate, and those goals exert constant, steady pressure on release decision-making.
Some of these “goals” are distasteful. A judge who worships the great God, Docket, and believes the folk maxim that “Nobody pleads from the street” will set high bails to extort quick guilty pleas and pare down his or her room list.
Another judge, otherwise unemployable, who needs re-election or re-nomination, will think that the bare possibility that some guy with a low predictive risk score whom he has just released could show up on the front page tomorrow, arrested for a grisly murder, inexorably points to detention as the safe road to continued life on the public payroll.
They are just trying to get through their days.
But the judges are subject to other pressures that most of us hope they will respect.
For example, judges are expected to promote legitimacy and trust in the law.
It isn’t so easy to resist the pull of “individualizing “and “diagnostic” imperatives when you confront people one at a time.
Somehow, “My husband was detained, so he lost his job, and our family was destroyed, but after all, a metronome did it, it was nothing personal” doesn’t seem to be a narrative that will strengthen community respect for the courts.
Rigorously applying the algorithm may cut the error rate in half, from two in six to one in six, but one in six are still Russian roulette odds, and the community knows that if you play Russian roulette all morning (and every morning) and with the whole arraignment list, lots of people get shot.
No judge can forget this community audience, even if the “community” is limited to the judge’s courtroom work group. It is fine for a judge to know whether the re-offense rate for pretrial releases in a particular risk category is eight in ten, but to the judges, their retail decisions seem to be less about finding the real aggregated rate than about whether this guy is one of the eight or one of the two.
Embedded in this challenge is the fact that you can make two distinct errors in dealing with difference.
First, you can take situations that are alike, and treat them as if they are different: detain an African-American defendant and let an identical white defendant go.
Second, you can take things that are very different and treat them as if they are the same: Detain two men with identical scores, and ignore the fact that one of the two has a new job, a young family, a serious illness, and an aggressive treatment program.
A risk assessment instrument at least seems to promise a solution to the first problem: Everyone with the same score can get the same bail.
But it could be that this apparent objectivity simply finesses the question. An arrest record, after all, is an index of the detainee’s activities, but it also a measure of police behavior. If you live in an aggressively policed neighborhood your history may be the same as your white counterpart’s, but your scores can be very different.
And risk assessment approaches are extremely unwieldy when it comes to confronting the second problem. A disciplined sticking-to-the-score requires blinding yourself to a wide range of unconsidered factors that might not be influential in many cases, but could very well be terrifically salient in this one.
This tension between the frontline judge and the backroom programmer is a permanent feature of criminal justice life. The suggested solutions to the dissonance range from effectively eliminating the judges by stripping them of discretion in applying the Risk Assessment scores to eliminating the algorithms themselves.
But the judges aren’t going away, and the algorithms aren’t going away either.
As more cautious commentators seem to recognize, the problem of the judges and the algorithms is simply one more example of the familiar problem of workers and their tools.
If the workers don’t pick up the tools it might be the fault of the workers, but it might also be the fault of the design of the tools.
And it’s more likely that the fault does not lie in either the workers or the tools exclusively but in the relationship between the workers, the tools, and the work. A hammer isn’t very good at driving screws; a screw-driver is very bad at driving nails; some work will require screws, other work, nails.
If you are going to discuss these elements, it usually makes most sense to discuss them together, and from the perspectives of everyone involved.
The work that the workers and their tools are trying to accomplish here is providing safety—safety for everyone: for communities, accused citizens, cops on the streets. A look at the work of safety experts in other fields such as industry, aviation, and medicine provides us with some new directions.
To begin with, those safety experts would argue that this problem can never be permanently “fixed” by weighing aggregate outputs and then tinkering with the assessment tool and extorting perfect compliance from workers. Any “fix” we install will be under immediate attack from its environment.
Among the things that the Kentucky experience indicates is that in courts, as elsewhere, “covert work rules”, workarounds, and “informal drift” will always develop, no matter what the formal requirements imposed from above try to require.
The workers at the sharp end will put aside the tool when it interferes with their perception of what the work requires. Deviations won’t be huge at first; they will be small modifications. But they will quickly become normal.
And today’s small deviation will provide the starting point for tomorrow’s.
What the criminal justice system currently lacks—but can build—is the capacity for discussing why these departures seemed like good ideas. Why did the judge zig, when the risk assessment tool said he or she should have zagged? Was the judge right this time?
Developing an understanding of the roots of these choices can be (as safety and quality experts going back to W. Edwards Deming would argue) a key weapon in avoiding future mistakes.
We can never know whether a “false positive” detention decision was an error, because we can never prove that the detainee if released would not have offended. But we can know that the decision was a “variation” and track its sources. Was this a “special cause variation” traceable to the aberrant personality of a particular judge? (God knows, they’re out there.)
Or was it a “common cause variation” a natural result of the system (and the tools) that we have been employing?
This is the kind of analysis that programs like the Sentinel Events Initiative demonstration projects about to be launched by the National Institute of Justice and the Bureau of Justice Assistance can begin to offer. The SEI program, due to begin January 1, with technical assistance from the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School, will explore the local development of non-blaming, all-stakeholders, reviews of events (not of individual performances) with the goal of enhancing “forward-looking accountability” in 20-25 volunteer jurisdictions.
The “thick data” that illuminates the tension between the algorithm and the judge can be generated. The judges who have to make the decisions, the programmers who have to refine the tools, the sheriff who holds the detained, the probation officer who supervises the released, and the community that has to trust both the process and the results can all be included.
We can mobilize a feedback loop that delivers more than algorithms simply “leaning in” to listen to themselves.
What we need here is not a search for a “silver bullet,” but a commitment to an ongoing practice of critically addressing the hard work of living in the world and making it safe.
James Doyle is a Boston defense lawyer and author, and a frequent contributor to The Crime Report. He has advised in the development of the Sentinel Events Initiative of the National Institute of Justice. The opinions expressed here are his own. He welcomes readers’ comments.
The first baseline measurement of pretrial justice across the U.S. has found most states to be failing, with a few “promising” exceptions, according to the Pretrial Justice Institute.
The first baseline measurement of pretrial justice across the U.S. has found most states to be failing, with a few “promising” exceptions, according to a national advocacy group.
In a study released Wednesday by the Pretrial Justice Institute, authors measured the rates of pretrial detention, use of available risk assessment tools, and the status of money bail systems in every state.
“Needless” incarceration before trail is the primary cause for states’ failing grades: according to PJI’s findings, two thirds of the current U.S. jail population has not yet been to trail.
At the forefront of pretrial justice reform are Washington D.C., where 92 percent of those arrested are released pretrial and no one is detained for inability to pay; and New Jersey, which implemented statewide pretrial services earlier this year, resulting in a 15 percent reduction of pretrial detainees within the first six months.
The report also highlights legislative advances made by Alaska, Arizona, California, Indiana, Maryland, and New Mexico in the area of pretrial justice reform.
While the number of jurisdictions using risk assessment tools has more than doubled in the past four years, authors note that the increase is driven by “a few states and densely populated jurisdictions,” adding that “evidence-based pretrial assessments show that most people released before trial will appear in court and not be arrested on new charges pending trial.”
The study used money bail as its final measure because “financial conditions play such a large role in needlessly detaining people and giving us a false sense of safety,” according to the authors. New Jersey is the only state to have eliminated money bail, so this is where the U.S. pretrial justice score hovers closest to zero: only 3% of Americans live in a jurisdiction that has eliminated cash bail.
“As long as pretrial systems use money as a condition of pretrial release,” concludes the report, “poor and working class people will remain behind bars while those who are wealthy go home, regardless of their likelihood of pretrial success. This is a fundamental injustice.”
Some worry that a risk-assessment tool under development could predict recidivism by weighing factors that serve as a proxy for race and socioeconomic status, ultimately incarcerating more black and brown defendants while allowing white defendants to go free.
BillyPenn.com looks into the racial ramifications of bail reforms that are part of sweeping changes to Philadelphia’s criminal justice system. City officials are working with top data scientists to develop a computerized risk assessment tool that looks at a variety of factors and assigns a defendant a label: low-, medium- or high-risk. Bail will be assigned from there, and the ultimate goal is to get more pretrial defendants out of the city’s jails while working to eventually end cash bail entirely. Criminal justice reform advocates see the end goal as a good one. But there’s a real concern that computerized risk assessment tools could predict recidivism by weighing factors that serve as a proxy for race and socioeconomic status, ultimately incarcerating more black and brown defendants while allowing white defendants to go free.
Hannah Sassaman, the policy director at the Media Mobilizing Project who was recently awarded a fellowship to study risk assessment models, said there are factors beyond race and zip code — which won’t be incorporated into Philadelphia’s risk assessment tool — that can stand as a proxy for race, whether it’s conviction record, job status or arrest history. “If we know convictions are caused by those systemic racist factors, how can we have convictions as a proxy for dangerousness?” she said. The development of a new risk assessment tool for Philadelphia is part of a number of strategies being implemented by a team of stakeholders working on a three-year project to reduce Philadelphia’s prison population by a third. Much of those efforts are being funded by a $3.5 million grant from the MacArthur Foundation.
A New York City experiment that used partially secured and unsecured bonds suggests that these are viable alternatives to a system that puts thousands of individuals behind bars awaiting trial because they can’t afford to make bail, according to a report issued Friday by the Vera Institute of Justice.
A New York City experiment suggests that bail methods which do not require paying large sums of money are a viable alternative to a system that is often skewed against the poor.
A report released Friday by the Vera Institute of Justice found that “partially secured and unsecured” bonds could be as effective in guaranteeing a person’s appearance at trial as traditional cash bail requirements that place an onerous burden on most defendants’ resources─often ensuring that low-income individuals are held in detention.
“The findings tell an important story about the possibility of culture change in the use of bail in (New York City) criminal courts, and demonstrate the potential of alternative forms of bail to serve as one more tool to make the current bail system fairer,” said Insha Rahman, a senior planner at Vera and author of the report.
Rahman traced the outcome of 99 cases over six to nine months where defendants were allowed to pay a refundable 10 percent or less of the bail amount set by judges (partially secured bonds) or no upfront payment at all. Judges and defense attorneys were trained on the paperwork involved.
The alternative bail experiment was applied to criminal as well as civil cases.
According to the findings, individuals released under the two bond procedures had an appearance rate of 88 percent, and a rate of pretrial re-arrest for new felony offenses of just 8 per cent.
And pretrial release also resulted in a resolution of the cases that involved a less serious charge than applied at the initial arraignment.
One-third of the cases ended in dismissal altogether, and another 20 percent ended in a non-criminal conviction.
The report acknowledged that the experiment affected only a miniscule number of the estimated 7,000 New Yorkers are jailed awaiting trial every day, usually for lack of resources to make bail.
New York Judges have at least nine different forms of bail they can require to guarantee an individual’s appearance in court, but according to the study, “by default” most choose the two forms that are the most financially burdensome: payment of a full cash amount or a nonrefundable 10 percent deposit to a bail-bond company.
The report said the procedure for issuing these alternative bail bonds needed to be simplified, and judges needed to be educated about their potential for.
Before issuing the alternative bonds, the city’s Office of Court Administration requires at least one person paying to agree to sign paperwork and swear under oath to be liable. That person must be able to demonstrate that he or she has a source of income and will pay the full amount if bail is forfeited.
“Expanding the use of alternative forms of bail will offer more New Yorkers the opportunity to await trial without the harm to employment, housing, family and overall stability that comes from pretrial detention, “said the report.
Releasing the wrong defendants can increase the risk that they won’t appear in court as directed—or commit additional crimes. But holding people unnecessarily can be costly. A series by The Sentinel studies the impact of bail decisions in two Pennsylvania countries.
Setting bail has consequences.
For a defendant, the consequence can be the difference between going home or sitting in jail.
Even a short stay in jail can cost an individual their job or even their home.
For society, releasing the wrong people can mean increasing the chance they will not appear as directed or possibly more victimization.
Holding people unnecessarily can be costly and, as recent studies have found, it can actually lead to an increase in recidivism and crime.
All of this is to say there is incentive for everyone to get these decisions right at the earliest possible point.
Whether a defendant sits in jail or remains free in Pennsylvania can be a matter of what zip code they were arrested in.
In 2016, the average defendant in Pennsylvania’s Cumberland County with monetary bail imposed was expected to pay $10,000 to remain out of jail, according to an analysis of court records conducted by The Sentinel.
However, the average defendant in neighboring Franklin County was expected to pay three times that.
Median bail for defendants charged with selling drugs in Franklin County was $100,000 last year, compared to only $25,000 in Cumberland County.
The variations don’t stop at the county level.
In Cumberland County in 2016, median bail amounts per judge ranged from $7,500 to more than $40,000.
Both Magisterial District Judges, Paul Fegley and Vivian Cohick, had set median bail amounts of $25,000.
“My first thought process is I did not bring you here,” Cohick said about dealing with the consequences of bail. “There has been a charge against you for a violation of the law.
“This is not just saying ‘you climbed up on the stool and I didn’t want you to climb up on the stool, so I’m going to paddle your butt.’”
“A person is being charged with a violation of the law,” she added. “That takes away some of the ‘you’re free to walk around and do what you want to do.’”
The Sentinel analysis reviewed all cases entering the magisterial district judge level in 2016 and sorted bails set at preliminary arraignment, which generally occurs around the time of arrest.
Cases where the defendant was issued a summons, usually lower level offenses, were not included in the analysis.
The Sentinel found no significant difference in the types of charges dealt with at arraignment that could explain the variation in bail amounts.
“How long are they going to sit in jail? That would be one of the things that might pop in my head,” she said. “But generally not so much, because I’m scheduling (a preliminary hearing) within three to 10 days. … That would bring them to their preliminary hearing quickly, so if they may not have bail, they may not have to sit long.”
Each year, thousands of bed days are lost at the Cumberland County Prison to defendants who are held on monetary bail before ultimately have their bail reduced and are released without financial conditions.
Most appear as directed. Many are later sentenced probation or other non-prison punishments.
A growing trend in criminal justice is the use of algorithms, known as risk assessments, to help quantify the decision-making process.
A recent study by the Laura and John Arnold Foundation found a county in Ohio was able to get better outcomes with less pretrial incarceration after implementing a risk assessment tool.
“Ultimately we want to just know what the person’s true risk level is,” University of Virginia Associate Professor of Public Policy and Economics Jennifer Doleac said. “Unfortunately, that is impossible.”
Risk assessments to do not eliminate all risk or provide absolute certainty of the outcome of individual cases.
In the case of the Ohio Risk Assessment, roughly five percent of low-risk defendants will likely fail to appear for court as directed if released.
Doleac also said risk assessments do not necessarily eliminate racial or other biases in the system.
“If you are deciding whether or not someone is a risk to fail to appear … and you know the person is unemployed and has no family, we know those things seem like they would be very plausibly causal factors to show back up in court,” Doleac said. “It’s just easier for you to take off if you don’t have any ties.
“But, we also know that black men are more likely to be unemployed, marriage rates are lower and those types of factors are going to be correlated with race.
“You have to draw a line somewhere.”
This is a condensed version of a series published by The Sentinel. Read the full series here. Joshua Vaughn is a 2017 John Jay/Measuresfor Justice Fellow. He welcomes comments from readers.