Colorado’s Pretrial Risk Assessment Tool Violates The Americans With Disabilities Act and the Equal Protection and Due Process Clauses Of The Fourteenth Amendment
As the Colorado legislature, at the urging of the Colorado Commission on Criminal and Juvenile Justice (CCCJ), continues their push for the statewide use of pretrial risk algorithms to determine bail, opposition against the expansion of these tools continues to grow. Unfortunately, we do not think local governments are getting the message that these tools have major problems and it is time to go back to the drawing board rather than risking impermissibly discriminating against those charged with a crime in Colorado. In response, we demanded on Friday that Weld County, Colorado immediately cease and desist in its use of the Colorado Pretrial Risk Assessment Tool (CPAT).
Open records requests and correspondence with Weld County have established that the County does not maintain a report indicating that the CPAT tool is valid, meaning they are unable to establish that the tool has been locally validated in Weld County if challenged. We have also established that Weld County has never tested the tool for racial or protected-class bias. In fact, one witness recently testified before the Colorado House Judiciary Committee that indeed the CPAT tool has never been tested by anyone for racial bias.
Unsurprising to us, the issues with CPAT gets much worse. The CPAT tool scores those who have sought treatment for mental illness, and those who may suffer from mental disabilities, as higher risk than those who have not. This will translate in many cases to higher bails and greater pre-conviction supervisory conditions, which could land a defendant in jail or trammel their other liberties solely due to their current or past mental illness. In fact, if a person refuses to answer the question or it is unknown to the risk assessment manager, that risk assessment manager is instructed to score the person has having received mental health treatment, and thus score that person higher based on failure to deny a mental illness. Therefore, the CPAT starts with a presumption that a person has sought treatment for a mental illness and is thus a higher risk of committing a new crime or failing to appear in court. This is just plain wrong, and, it also happens to violate the Americans With Disabilities Act.
Further in our cease and desist to Weld, we also threaten equal protection litigation because we believe the CPAT impermissibly discriminates based on race by using the ownership of a residence as a basis to discriminate by labeling homeowners as less risky to commit a new crime or not appear in court as those who do not own their homes. Based on ownership statistics from Denver County in 2015, it was learned that under the CPAT scoring methodology African-American and Hispanic defendants, due to lower rates of home ownership than whites, are 218% and 134% more likely to be labeled at higher risk to commit new crimes while on release from jail or fail to appear in court as required. This is so because 63.7% of whites in Denver own their homes, as compared to the 29.1% of African-Americans who own their homes.
We also detailed other equal protection and due process violations that are occurring a result of using the CPAT tool, the same tool the CCJJ wants to mandate statewide under proposed legislation House Bill 19-1226.
When it comes to these pretrial risk assessment algorithms, we are simply not going to back down. State and local governments have done an embarrassing and poor job of vetting these tools and simply assume they must work because they are “scientific.” Scholarly research continues to mount against the use of these tools, yet they continue to ignore the reality. In fact, 110 civil rights groups have called for the ban of the use of these pretrial risk assessments.
The facts are clear – and we simply will not let criminal defendants continue to face discrimination that leads to extended stays in jail, unfair labeling by an unchallengeable AI instrument, or having their basic civil liberties unnecessarily trammeled upon.