CA: Senate Bill 10 and Additional Legislation by Senator Hertzberg Cannot Change Reality: Risk Assessment Tools Magnify Racial Bias, Waste Scarce Criminal Justice Resources, and Don’t Work

The Los Angeles Daily Journal recently published an article, entitled “Analysis of LA County Pretrial Risk Assessment Tools Raises Questions,” where data scientists discovered that the risk assessment tool being used in Los Angeles County, California was ineffective and labeled so many persons as high risk that it would be lock-up city if the County were to follow the lead of such algorithms.

An analysis of pretrial risk assessment scores given to defendants in Los Angeles County over the course of a year reveals a faulty system that could lead to more incarceration and more crime, according to experts in the field of pretrial detention. – Daily Journal, 12/5/18

At the same time, Los Angeles native Senator Robert Hertzberg, who championed California's version of bail reform in Senate Bill 10, thinks otherwise—he thinks he can legislate his way out of a stark reality with the introduction of S.B. 36: Pretrial Release: risk assessment tools, the reality that risk assessment tools in Los Angeles and elsewhere do nothing to reduce mass incarceration, waste a whole lot of people’s time, and magnify racial bias.

One-hundred ten civil rights groups, including the ACLU, NAACP and Color of Change, have called for an end to these very pretrial risk assessments that Senator Hertzberg not only wants to prop up, but that he wants to be the fundamental lynchpin of his copy-cat version of the Federal Bail Reform Act of 1984, the so-called no money bail system.

As part of its ongoing investigation into algorithms being used in pretrial proceedings, a practice that will be codified under SB 10 should it be enacted in October 2019, the Daily Journal reviewed nearly 300 pages of records obtained through a California Public Records Act request showing the risk assessment scores for defendants arraigned in 2017.  Of the 11,240 scores assigned by the probation department to defendants who were arraigned that year, 73 percent fall into the high-risk category, a number some experts say shows the algorithm is not operating properly.  – Daily Journal, 12/5/18

The concerns of racial bias are real and simple to understand—if a risk assessment is a snapshot in time, it must necessarily always look backward, where nearly everyone agrees there is inherent bias in the system.  To use a pretrial risk assessment is to force decision-making in a fashion that harmonizes it with the past and all the baked in bias that goes along with it.  No legislation coming out of Sacramento or edict from the Chief Justice is going to fix this.

"The classification system is faulty based on what you're trying to accomplish," VanNostrand said. "The goal pretrial generally is to identify the highest risk defendants -- which should be reasonably small -- that are so high risk there's no legal standard to ensure court appearance or community safety.  Seventy-three percent by any measure is unacceptable." - Marie VanNostrand

While national interest groups and academia are gearing-up on finding mechanisms and theories to sue local governments who are using these shotty assessments, Hertzberg is going to force more of it, exposing local governments to what will eventually be a wave of lawsuits.

And shotty these assessments are—the article notes that in Los Angeles County, a tool was adopted from Wisconsin that was not designed for use in the bail setting process but instead to decide sentencing.  That is a critical problem because the presumption of innocence evaporates upon conviction or guilty plea, but serves to prevent state interference with key constitutional rights until such time.  In Los Angeles, it didn’t matter.  Was the tool ever locally validated?  We don’t know.  Is there a report of validation?  We don’t know that either.  What we do know is that this tool that would have locked up 80% of the guilty was used in Los Angeles to instead recommend the locking up of 80% of the innocent.

In addition, the three-tiered scale Los Angeles County uses and the scale defining those three categories is almost a carbon copy of the Wisconsin prison department's model, which varies by a single digit when defining its categories. (Low risk is scored between zero and eight, et cetera.). The oversight could account for the high percentage of arrestees who received high-risk designations since a 2009 validity study of the Wisconsin model conducted by the Council of State Governments Justice Center found an "over-classification" of inmates who were considered high risk, specifically 93 percent. – Daily Journal 12/5/18

To add insult to injury, scarce criminal justice resources were employed to put this regime in place, a regime that clearly made things worse.  Playing the risk percentages is meant for individual consideration—but it is precisely the opposite.  In the case of Los Angeles, it falsely labeled people as dangerous who were not dangerous.

Local officials in Los Angeles and elsewhere need not worry though—folks in the bail industry and various interest groups stopped Senate Bill 10 from becoming law by obtaining sufficient signatures to put the issue before the voters in November, 2020.  But let’s think for a moment what would have happened under Senator Hertzberg’s bill if were to become law right now.  The momentum of mass incarceration would immediately accelerate if this algorithm were the lynchpin of the new system under Senate Bill 10, and similarly, when defendants could not be locked up without bail, they would be electronically incarcerated, and their basic civil liberties trammeled upon.  Judges would believe too many of them to be dangerous and ensnare defendants with modern day shackles and onerous conditions of release – probation before conviction.  This is the precise reason civil libertarians were so vehemently against the risk-based bail system—using flimsy information hours after arrest to proclaim someone dangerous, and unfortunate label that no subsequent hearing, including being found not-guilty by a jury, could ever remove.

Instead, these algorithms are junk science—they waste the time of courts, they waste the time of local governments, they substitute judicial discretion, and they do not deliver.  If they did, we think 45 years of using them in the criminal justice system would have produced results, not the generational mass incarceration fueled by the growth of probation and parole that we saw instead.

For Senator Hertzberg—the answer is don’t worry—he’s got another fix in S.B. 36 that will command something to be reality that we all know never will be.  The passing of Senate Bill 10 – fueled by Senator Hertzberg’s desire to simply pass anything labeled bail reform that cripples an entire private industry he so publicly loathes – has instead put California on a crash course with the California Constitution and Hertzberg on a crash course with those supporters he was so quick to abandon to get his “garbage” over the finish line.

You don’t force something bad in the effort to do something good.  This bill is garbage and you all know it.” – CA Assemblyman Devon Mathis