The ACLU of North Carolina is advocating for sweeping changes in the pretrial release of criminal defendants. Yes, bail reform fever has come to the Tar Heel State and the North Carolina chapter of the ACLU wants it bad. They point to the success of the MacArthur Foundation funded program in Mecklenburg County, proclaiming that “it works!” The question is what is exactly working and what direction should bail reform go in North Carolina in the longer term?
Fortunately for the ACLU of North Carolina, legislators, and public officials, all we really need to do is ask the national ACLU in order to find out.
The ACLU of North Carolina’s bail reform model relies heavily on the use of pretrial risk assessment tools to predict who is a flight risk or danger and to decide who gets what bail and conditions of release. The ACLU of North Carolina make the statewide use of such algorithms the lynchpin of their proposed reforms. Yet, the national ACLU signed onto a statement with 109 other national civil rights groups, including the NAACP, calling for an end to the use of pretrial risk assessments within the United States, largely due to concerns of racial bias and also issues of validity and invalidity.
“The ACLU is committed to dramatically reducing the number of people jailed pretrial, ending our country’s over-reliance on money bail, and combatting systemic racism at all stages of the criminal justice system. Everyone should have a fair chance to secure their freedom while they are presumed innocent. For those reasons, we have signed this important statement of concern.” – Jeffery Robinson, deputy legal director for the American Civil Liberties Union (ACLU)
“Pretrial detention reform that addresses the injustice of people being jailed because of their poverty is urgently needed, but substituting risk assessment instruments for money bail is not the answer. Biased policing practices in communities of color result in racial disparities in the data risk assessment tools rely on, making Black and Brown people look riskier than White people. Pretrial detention reform must include solutions that will reduce the disproportionate incarceration of people of color, not worsen it.” – Monique Dixon, deputy director of policy and senior counsel for the NAACP Legal Defense and Educational Fund
“Our communities need policies and practices that reverse mass incarceration, not ones that reinforce the racism already painfully present in the system. Until we address the inherent racism in our justice system and focus on meeting the needs of our communities, technological ‘solutions’ like risk assessments will continue to fall short.” – Scott Roberts, senior criminal justice campaign director at Color of Change
This national outcry against the use of pretrial risk assessments are on the heels of a national investigation that found that one of the most widely used risk assessments in criminal justice is “biased against blacks.”
There was also the publication of a recent article by Professor Robert Werth of Rice University, who demonstrated that the use of risk assessments was a critical factor in causing generational mass incarceration that really began in 1970.
"It has been argued that risk assessment tools could help stem the tide of mass incarceration," Werth said. "However, the evidence suggests that thus far, risk assessment instruments have contributed to expanding the number of people enmeshed in the criminal justice system—encompassing imprisonment, probation and parole." – Robert Werth, Rice University
So, perhaps the “NC” ACLU needs to ask the “national” ACLU which side the “national” ACLU is on when it comes to issues – before they jump on the latest social experiment bandwagon. Clearly, the ACLU of North Carolina has a different policy than the national ACLU when it comes to forcing the use of pretrial risk assessments by judges. One ACLU would jam it down North Carolina judges’ throats—the other would give judges the risk assessment Heimlich maneuver. So, which one is it?
One other little minor point the “NC” ACLU may want to call the “national” ACLU about. Mecklenburg County is using the Arnold Foundation Public Safety Assessment tool, which is the least transparent of public safety assessment tools by forcing entities to sign a non-disclosure agreement, concealing the information used to build and validate the tool from public view, forcing entities to give more and more data to the Arnold foundation so that they can store it out on a cloud somewhere, and in some cases requiring that judges follow the tool 80% of the time – further eroding judicial discretion.
“The State of Iowa shall aspire to release on own-recognizance without conditions at least 80% of defendants for whom the Decision Making Framework recommends such release.”
In fact, if the ACLU of North Carolina were to contact the ACLU as to why they signed on to the risk assessment opposition statement, one of the primary reasons would be the utter and complete lack of data transparency and the inability of a criminal defendant to challenge what the Arnold Foundation’s tool says the bail and conditions of release should be. Yet, for the ACLU of North Carolina, they like a non-transparent tool run by a billionaire former Enron executive who not only tries to “moneyball” criminal justice but tries to end retirement security for public employees. Yet, the ACLU could have told the ACLU that!
No surprise here – the ACLU of North Carolina wants to get rid of monetary bail. Easier said than done, of course. Yet, what happens when there is no money bail, who stays in jail? The answer is no one but capital murderers without dramatic expansion of preventative detention, that is, detention with no bail at all.
The ACLU of North Carolina would move to a no money bail system, but on that point, they need to also contact several ACLUs past and present.
The national ACLU opposed the Federal Bail Reform Act of 1984, arguing that the move to preventative detention and the risk-based bail system would increase pretrial incarceration (which it did—the Act tripled pretrial detention in the federal system since it was passed). The ACLU of North Carolina should also contact the ACLU of California, which recently opposed bail reform in California on the grounds that the no money bail system would instead be worse than the money bail system it sought to replace, due to the expansion of preventative detention. The ACLU of North Carolina might also want to give the ACLU of Maryland a call, where double-digit increases in pretrial populations were observed during the first year of the ACLU of Maryland’s no-money bail policy, instituted in Maryland by the Maryland Court of Appeals at the urging of Attorney General and friend of the ACLU Brian Frosh.
The ACLU of North Carolina is selling to policy-makers a completely discredited bill of goods. It’s one thing to look at low-level, first time offenders that may get unnecessarily ensnared in the criminal system, or to bring some due process improvements to the bail system like we have seen in some jurisdictions. The ACLU of North Carolina, however, is going for the jugular—it is time, they would argue, to go to the no money bail system, and let big data algorithms replace judicial discretion and make all pretrial decisions.
Of no surprise, we have never seen or heard of a pretrial risk assessment that recommended a financial condition of release that is secured by licensed and regulated bail agents with third party indemnitors. The fact that financially secured bail has been by far the most effective form of pretrial release in our country for decades apparently means little to Lori Messinger, board member of the ACLU of North Carolina, or the rest of the ACLU of North Carolina. No…it’s release or incarcerate – defendants inhumanly segregated into categories. High risk, low risk, medium risk…and complete removal of individual consideration.
The only groups the ACLU of North Carolina need to contact to figure this issue out are other local chapters and the national chapter of the ACLU, which continue to reject the very reforms the ACLU of North Carolina is pushing. Of course, we would have offered to help, but when we submitted open records request to Mecklenburg County to get the data so we could show the ACLU it didn’t work, the County denied our request. 2.3 Million in grant funding from the MacArthur Foundation in the last three years to implement the Arnold Foundation’s pretrial risk assessment certainly has its advantages for the champions of social engineering.
What should bail reform look like? 14 principles for states considering reforms...