The Risky Business of Risk Assessment
One aspect of the bail reform debate that often gets overlooked is the system that would replace cash bonds for pretrial release. Too many people seem to forget that cash bail has been a part of our criminal justice system since its inception with roots to England in the Middle Ages. Bail has evolved over the last two hundred years. The United States has passed legislation to ensure that defendants are free from excessive bail as early as 1789. The next major overhaul occurred in 1966 with the Bail Reform Act and finally with the revision known as the Bail Reform Act of 1984. The Bail Reform Act of 1984 has been amended a number of times in an effort to protect the rights of defendants.
Proponents of bail reform argue that the bail system discriminates against the poor. They demand the abolishment of cash bail but fail to provide a reasonable solution for its replacement. Some have offered pretrial risk assessment programs that rely on algorithms to determine a defendant’s risk level. The pretrial risk assessments programs rely on data that many argue discriminates against minorities and those already disenfranchised. The risk assessment programs are rarely completely transparent in how they determine a person’s risk level and according to opponents rely on biased data in their assessment.
It is unclear what system could provide a viable solution for replacing cash bail. Perhaps, bail is not the driving force behind centuries long discrimination that has plagued our criminal justice system. Maybe if we look deeper into the root of the problem and have everyone come to the table to discuss a real way forward, we can make progress. Replacing cash bail with a system based in biased data does not seem to fix the problem and will, perhaps, make it worse.