Arnold Ventures Admits the Public Safety Risk Assessment is Not the Answer; Instead, Nebulous Concepts and Renewing a Failed Forty-Seven-Year-Old Movement is Now the Answer

Arnold Ventures, the proprietor of the most widely used pretrial risk assessment in the country, is bending under pressure…now reinventing itself as a for-profit so they can hire lobbyists to twist arms rather than convincing policymakers to adopt their framework based on the merits.  Formerly the Arnold Foundation, Arnold Ventures has hired all new staff in the last year or so attempting to keep the failed movement of pretrial risk assessments moving forward without anyone knowing they blew it.

After a series of scathing rebukes from civil rights groups, digital groups, and a team of highly respected academics coming out against pretrial risk assessment tools, the Arnold Foundation, errr…..Ventures, had to come up with something other than to simply say what we were advocating for failed, has failed for a generation, and now we are going to move on.  Despite the fact that that’s probably the right thing to do, they have now simply launched a smoke-screen to pivot away from what they spent millions of dollars on to convince state and local policy-makers that we could use a computer to end money bail.

Since 2010, nearly a decade ago, John Arnold (the former Enron executive) through his staff at the Arnold Foundation told the world that they were going to use a computer to “moneyball” the criminal justice system.  It was pretty simple: a risk assessment algorithm could “replace” money bail.  And everyone believed it, including the Pretrial Justice Institute (PJI), who is now trying themselves to escape their way out of this failed movement, putting in writing that advocating for risk assessments and preventative detention as a solution to “end money bail” was a product of the white-privilege of those running PJI.  We always thought it was just ill-informed policy-making—but they can call it whatever they want.

Enter new Excuse-Maker-in-Chief over at the Arnold Foundation, James Cadogan, Executive Vice President Criminal Justice at Arnold Ventures, in charge of “Judicial Release Decisions.”  On September 10, 2019, he traveled to San Diego to present to 784 government employees who work in the field of pretrial supervision at the National Association of Pretrial Services Agencies.  This association, which has been advocating for pretrial supervision and risk assessment for now 47 years, needed someone to serve up the red meat after the bottom had fallen out on their risk based preventative detention movement.  Cadogan was indeed the right guy to re-affirm – and come up with something that would keep the ship from sinking.  He delivered the keynote address at the self-proclaimed “successful conference,” which you can read here.

Cadogan noted that there are now five points of light that need to be done in order to keep the pretrial reform momentum going.  We are not sure what the momentum is—national peer-reviewed research showed that their tool didn’t de-carcerate, didn’t improve public safety, and didn’t increase appearance rates.  Nonetheless, rather than simply saying that replacing money bail with the pretrial risk assessment didn’t work, he came up five new key things we need to do to fix the system.

Before we delve into Cadogan’s five key points, it is important to recognize what one of the five points of light is not – using the Public Safety Assessment (PSA) tool that the Arnold Foundation has been pushing and paying jurisdictions to implement for the better part of a decade.  So, after a decade of money-balling, now the central foundation of the end cash bail movement, the risk assessment, is not only not a solution, it didn’t even make the top five.  So, what did Cadogan say about the PSA?  He said, “no risk assessment, by itself, is a ‘solution.’”  He also said that, rather than listening to the dogmatic arguments of the Arnold Foundation past, that: “Every jurisdiction needs to evaluate and decide for itself the value of an assessment to its systems change and engage a policy process analyzing how that kind of data might help inform judges’ discretionary decisions.”  We are not sure how the local jurisdictions will engage in such policy process, but we can tell you this position is diametrically opposed to the Arnold Foundation’s prior position.  Inside Sources said it best…

“The Arnolds, left-leaning Texas billionaires who made their fortune from defunct Enron and a hedge fund launched by Mr. Arnold, have pushed for their tool to be adopted in communities across the country.” – Inside Sources, August 14, 2018

The Harvard Law Review noted that the Arnold PSA “replaced money bail in New Jersey.”  Of course, we were there at the time—former Arnold employee and New Jersey Attorney General Anne Milgram advocated to replace the money bail system with the PSA, and so did the Arnold Foundation, along with their cohorts at the Pretrial Justice Institute and the ACLU of New Jersey.

Now that the Arnold Foundation doesn’t believe that the PSA cracks the top five in terms of key solutions to the “money bail system,” you know, that system that dates to the Magna Carta and is a core constitutional right enshrined in state and federal constitutions, then what are the solutions?  Here they are, according to Cadogan:

1. a commitment to reducing unjust detention;
2. ensuring that nobody is jailed because they cannot afford bail;
3. preserving the presumption of innocence by implementing a presumption of release for most arrested individuals;
4. reserving detention only for those few for whom other conditions will not protect public safety or ensure their return to court; and,
5. protecting the constitutional guarantee of due process by only imposing any detention after a meaningful, individualized hearing.

These are not exactly anything but implementing a rough philosophy, but the problem is that all but one of these are already the philosophy of our system of arrest and release in this country.  Let’s take each of these key “solutions” in turn.

First, no one supports “unjust” detention.  Cadogan doesn’t describe what he means by “unjust.”  That is a normative solution.  In fact, we are not aware of anyone advocating for “unjust” detention.  Certainly, there is nothing here that would aide jurisdictions in deciding what detention is unjust.  We assume that is why we have due process and legal remedies in our system—so if the cops falsely arrest someone they can file a habeas petition.  Or, if the police lacked probable cause, then the person can challenge the validity of continuing incarceration.  This a nebulous solution at best.

Second, “Nobody is jailed because they cannot afford bail” is also not a solution.  What would that mean?  Everyone gets released upon arrest under this theory, period, because Arnold Ventures and Cadogan are not going to advocate to expand the power of the government to detain defendants without bail (see below).  No one, however, is jailed “because they cannot afford bail.”  They are arrested and taken to jail because the police have probable cause to believe they committed a crime or because they have obtained an arrest warrant signed by a judge.  In addition, if we are to say if you simply cannot afford bail then you get out of jail, then no one will “afford” their bail.  Instead, Cadogan should take a look at Stack v. Boyle, which says that bail should be set an amount reasonably calculated to guarantee the appearance of the defendant and no greater.  Stack doesn’t say bail should be set an amount someone can “afford.”  As we have said for nearly a decade, either everyone gets out under this rubric of affordable bail without having to post bail, or, in the alternative, preventative detention powers are expanded.  Cadogan can’t have it both ways, and clearly he and Arnold Ventures would argue that the only grounds for preventative detention would be the undefined “few” with everyone else getting out because a criminal charge is a mere accusation.

The third key solution is to “implement a presumption of release for most defendants.”  Well, most states have already done that.  In Michigan, for example, research from Pew Charitable Trusts demonstrated that 82% of defendants charged with a misdemeanor were released in two days or less, and 69% in one day or less.  So, what should Michigan now presume in Cadogan’s world view? Again, this is nebulous, solution-lacking rhetoric.  Also, what is “most.”  A majority? A bunch?  In addition, nearly two-thirds of felony defendants are already released under the money bail system, according to the Bureau of Justice Statistics: “Between 1990 and 2004, 62% of felony defendants in State courts in the 75 largest counties were released prior to the disposition of their case.”

Solution number four then cements what we are talking about: Cadogan and Arnold Ventures actually believe that the presumption of innocence should extend to the arrest and detention process and altogether prevent pretrial detention, except in the case of some undefined “few.”  That is completely irresponsible policy-making and is inconsistent with Stack.  In addition, preventative detention has always been reserved for a few, except in the federal system, which was the model that the Arnold Foundation and the Pretrial Justice Institute was pushing before it got caught with its collective pants down.  The federal system has tripled pretrial incarceration by relying on risk assessments and preventative detention.

The fifth solution demands protection of due process when the government is able to detain someone without bail.  This has been black-letter law for at least the last 32 years.  This is hardly revolutionary thinking, and to advocate otherwise would invalidate schemes of preventative detention.  In  U.S. v. Salerno, the U.S. Supreme Court, in 1987, upheld preventative detention but only because there was adequate due process, i.e., proof by clear and convincing evidence of danger to the community or a flight risk and that no alternative to detention would reasonably guarantee the safety of the community or the appearance of the defendant.  Of course, Cadogan’s last job was the director of the Thurgood Marshall Center.  Today, he might want to read then-Justice Thurgood Marshall’s dissent in Salerno, where Marshall argued that even with adequate procedures, a system of preventative detention authorized by then-Chief Justice Rehnquist’s majority opinion was inconsistent with our constitutional tradition of the right to bail.  Likewise, he might want to read Judge Kearse’s opinion from the Second Circuit, holding the Federal Bail Reform Act of 1984 unconstitutional.

Cadogan’s remarks were delivered to an organization that has been “fixing” the money bail system for the last 47 years, roughly around when their hero, former USAG Robert Kennedy said the answer is to just supervise people rather than hold them on bail – because supervising the innocent is indeed the key to protecting the presumption they are innocent, or something like that.  Strangely, it is within the last generation, around the last 47 years, where generational mass incarceration occurred.  We believe, and research shows that supervision policies and risk assessment have contributed to mass incarceration, not fixed it.  But don’t tell the 784 government employees who are going to continue to fix the system (and later collect pensions based on their key de-carcerating work) by advocating for the exact same policies that they have been advocating for the previous 47 years.

Cadogan may very well be the newly appointed spinster-in-chief, the chairman of the policy pivot, but we all know the truth: the PSA didn’t work, it’s not going to work, and he and his buddies down at Arnold Ventures are merely paid hacks for billionaires who want to feel good rather than actually fix something.  We’ll go ahead and stick with the 100 national civil rights groups, 80 digital groups, and hundreds of local civil rights groups from coast to coast who say their risk assessment movement is over.

As far as Cadogan’s new five points of light “movement” they are now trying to create – this is more of a joke than the risk assessment movement was in the first place.  As the black-box movement dies, more reasonable reforms take their place, like our 4^th Generation of Bail Reform that might actually have an impact – not the 3^rd Generation of Bail Reform that has failed so dramatically.  Credit the Arnolds for forcing it to last this long by pumping millions of Enron dollars into it and a PR campaign designed to prove it worked.  The light has all but gone out on the risk assessment movement, and Cadogan’s five points of light will not revive the dead.