California may replace cash bail with algorithms — but some worry that will be less fair

A fight over replacing bail with "risk assessment tools" has split reform advocates. Some fear the change will worsen anti-Black discrimination.
Image: A person of color in an orange jumpsuit looks at a digitized, green gavel.
Distrust of predictive algorithms has divided the bail reform movement.Anson Chan / for NBC News

The movement to eradicate bail from America’s justice system will face a crucial test Nov. 3, when California voters will decide whether to end the centuries-old practice of trading money for freedom and replace it with algorithms that try to predict whether defendants deserve to be released before trial.

If the ballot measure known as Proposition 25 passes, California will follow dozens of counties, and several states, that have adopted “risk assessment tools” intended to bring more fairness to the pretrial justice system. Traditionally, that system has relied on the payment of cash or bonds to guarantee defendants will return to court — which keeps poor people locked up or in debt to bail bondsmen.

A victory on the referendum would come at a key moment for reform advocates, who are trying to harness public demands for change following the May 25 killing of George Floyd by Minneapolis police.

But the vote also comes at a time of rising skepticism about using mathematical formulas to determine whether someone is likely to return to court for trial or get arrested again. A growing number of researchers, computer scientists and civil rights advocates have warned that the algorithms — which use data about a person’s background and criminal history to assign a risk score — could worsen discrimination. Black people, for example, are arrested at higher rates than white people, which makes them more likely to get higher risk scores, which judges could cite to keep them locked up.

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Those concerns have split reform advocates in California and elsewhere, as influential groups, including the American Civil Liberties Union and the Pretrial Justice Institute, have disavowed risk assessment tools. Some have started campaigning against the California ballot measure, pitting them against former allies who see the bail reform plan as a golden opportunity to end a practice that criminalizes poverty — and putting them on the same side as the bail bond industry, which is also fighting the measure.

The California debate reflects a nationwide reckoning over the use of algorithms as reformers’ “default” replacement for bail, said John Raphling, a senior researcher on criminal justice at Human Rights Watch, which opposes Proposition 25.

“Over the past few years people have begun to understand what risk assessment tools are,” Raphling said. “And the more we explore them, the more we realize they're a huge danger to the goals of the bail reform movement. This is a movement to reform the pretrial system, to reduce the number of people held pretrial and reduce discriminatory impact.”

The case against bail

Bail is a cornerstone of the American criminal justice system, enshrined in the Bill of Rights, entrenched in popular culture and resistant to change.

In theory, it gives most defendants, presumed innocent before trial, the chance to remain free while their cases proceed. Judges typically set payments by consulting bail schedules that assign an amount according to the charge, by examining the defendant’s criminal record and home life, and by relying on their own experience and intuition. Those who can’t afford to pay can seek out a bondsman willing to loan the money.

Or they can sit in jail.

The number of people behind bars awaiting trial has exploded since the 1980s, reaching 470,000 in 2017. A vast majority are charged with nonviolent crimes and a disproportionate number are Black. Pretrial detention can be devastating: Getting stuck in jail makes someone more likely to lose their job, their home and custody of their children. Desperate to get out, they are more likely to plead guilty to something they didn’t do. That leaves them vulnerable to the lifelong economic consequences of a criminal conviction.

Philanthropic organizations, private companies, judges and lawmakers turned to algorithms as a solution, saying risk assessment tools could remove the arbitrariness, subjectivity and disparities of the existing system. The tools vary widely, but they generally use information about a person’s life, demographics and prior criminal record. That has raised concerns about baked-in bias producing unfair risk scores.

One of the biggest test cases is New Jersey, which replaced bail with a risk assessment tool in 2017. The number of people stuck in jail while awaiting trial there has dropped 27 percent since then. But racial disparities have not budged.

Last year, more than two dozen researchers signed an open letter warning about the use of risk assessment tools, saying they suffered from “serious technical flaws,” including the reliance on criminal history data that provide “distorted” risk predictions. Another team of researchers argued that the tools did not reduce racial disparities among people jailed while waiting for trial, and may actually worsen the gaps.

Those warnings are starting to have an impact.

In January, the Ohio Supreme Court chose not to recommend risk assessment tools in a report on bail reform, reportedly swayed by arguments about racial bias from the ACLU.

A month later, the Pretrial Justice Institute, a nonprofit that for years persuaded jurisdictions across the country to adopt the tools, reversed course and disavowed them, saying they were “derived from data reflecting structural racism and institutional inequity.”

“The idea that people are inherently risky needs to change,” Meghan Guevara, an executive partner at the Pretrial Justice Institute, said. “The problem with risk assessment tools is that everyone is ranked as having some kind of risk.”

Reform advocates who oppose algorithms favor alternatives that eliminate detention for most nonviolent offenses, help poor people argue for release and provide services, from transportation to mental health care, that make it easier for people to return to court.

They lobbied for a law that went into effect this year in New York, which eliminates pretrial detention and cash bail in most misdemeanor and nonviolent felony cases without using a risk assessment tool.

“New York is a model for how you take money bail mostly out of the equation,” Insha Rahman, vice president of advocacy and partnerships at the Vera Institute of Justice, said.

A split over algorithms

The shift in thinking about risk assessment tools has had a dramatic effect in California.

The tools were rising in popularity in December 2016, when Democratic state lawmakers introduced a bill that would end cash bail. Civil rights advocates saw the announcement as a major turning point in their drive to make the justice system fairer for poor people.

“It was really exciting,” Raj Jayadev, the head of a San Jose community organizing group called Silicon Valley De-Bug, recalled. “We were full of hope and ready to get to work.”

The original version of the bill did not mention risk assessment tools, but amendments gradually gave more power to the technology, as well as to judges, who could order someone held indefinitely before trial. That led many supporters, including Silicon Valley De-Bug, to withdraw their endorsements. But the bill, known as SB10, passed, and then-Gov. Jerry Brown signed it into law in August 2018.

Raj Jayadev, director of Silicon Valley De-Bug, speaks during a bail reform rally in front of the Santa Clara County Hall of Justice in February 2018 in San Jose, Calif.Karl Mondon / MediaNews Group via Getty Images file

“SB10 put people between a rock and a hard place,” said Lex Steppling, director of campaigns and policy at Dignity and Power Now, a Los Angeles nonprofit that urged Brown to veto the bill.

Steppling called risk assessment tools “a post-modern version” of redlining, the discriminatory policies used by financial companies to designate Black neighborhoods as unworthy of investment.

The bail industry, facing extinction in California, launched a campaign to shut the new law down. It collected enough signatures to put it before voters, who will decide Nov. 3 whether it ever goes into effect.

The campaign against the measure, largely bankrolled by the bail industry, the insurance companies that finance it and the state Republican Party, has raised more than $8 million. Proponents have raised more than $6 million, mostly from billionaire John Arnold, whose Arnold Ventures developed a risk assessment tool used in New Jersey and dozens of jurisdictions across the United States, Los Angeles Clippers owner Steve Ballmer, the state Democratic Party, and state labor unions.

Arnold Ventures said in a statement that risk assessment tools "have been an important part of reforms that shrink jail populations without exacerbating bias.”

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The reform organizations that turned against SB10 have conducted their own opposition campaign and say they have not coordinated with the bail industry. But the bail industry has cited some of the same criticism of the law, including the reliance on risk assessment tools.

However, Jeff Clayton, executive director of the American Bail Coalition, which raised money for the referendum campaign, said that wasn’t the heart of the industry’s concern: “The most obvious reason we don’t like SB10 is that it eliminates bail bonding in California.”

The fight over SB10 has frustrated many of the more moderate reformers who have stuck with it from the beginning.

“For 30 years, we’ve been trying to end cash bail and now we’re in a position to end it,” Sam Lewis, executive director of the Los Angeles-based Anti-Recidivism Coalition, said. “But now, some people don’t want to end it.”

Lewis, who is Black, became a reform advocate after his release from prison in 2012 for a gang-related murder committed when he was a teenager. He sees a direct line from slavery to post-emancipation laws used to impoverish and prosecute Black people to the modern bail system.

“Why would I want to continue with a system that at least for Black people is based on racism?” Lewis said.

But Jayadev, of Silicon Valley De-Bug, says the debate has deepened his belief in changing the system locally.

His organization helps people accused of crimes in Santa Clara County gather support from family and share their struggles with judges, an approach that can dissuade judges from imposing bail. The group has also worked with public defenders to aggressively argue against pretrial detention.

Santa Clara County already uses a risk assessment tool in conjunction with cash bail, but the group’s “participatory defense” strategy adds information that makes the process more fair, Jayadev said.

That kind of hyperlocal work is the future of bail reform, he said.

“From the outside in, it looks like such a simple question, of money bail or no money bail,” he said. “But if you lift that veneer and look at what’s the goal of ending money bail, it’s trying to free people from pretrial incarceration. To keep them disentangled from the system.”

CORRECTION (Oct. 17, 2020, 10:28 a.m. ET): A previous version of this article misstated the Vera Institute of Justice’s current position on risk assessment tools. It still works with jurisdictions that have them; it has not disavowed them.