FBI’S Crime Files Lurk Behind Colorado’s Secret Bail Algorithm


Justice-by-algorithm is certainly in vogue at the moment.  The issue concerns individuals who have been arrested and charged with a crime, and asks the question: who should be eligible for bail and who stays behind bars?

According to the grand claims of reformers, computers are less biased than experienced judges with years on the bench.  Using algorithm-based risk assessment, they purport to offer a system of criminal justice in which racial disparities are a thing of the past and total fairness is the new norm.

Unfortunately, research the past couple of years has shown that the algorithms are inherently biased -- perhaps even beyond statistical remedy.  As more evidence pours in, public officials throughout the nation are facing growing demands from dozens of community groups that they resist the temptation to move to a model of  justice based on risk assessment.

This past summer, the Leadership Conference of Civil Rights and 110 national civil rights organizations called for an end to the use of pretrial risk assessments due to concerns concerning bias, transparency and validity.

The move to algorithm-based tools has had far-reaching impact in Colorado.  In 2012, several counties in the state got together to build what they call the Colorado Pretrial Risk Assessment Tool (CPAT).  It scores various factors, such as the age at which a person was first arrested or history of substance abuse.  From that tally, government employees make a determination as to the "riskiness" of a defendant.  Their conclusions are then passed along to judges, along with specific conditions of pre-conviction supervision that should be imposed, such as GPS monitoring, check-ins and/or drug screenings.

Use of CPAT in Colorado is growing, despite damning evidence uncovered in an 2016 ProPublica study, which concluded that a very similar risk assessment algorithm called COMPAS, was “biased against blacks.”  It also revealed that the tool was notably inaccurate, predicting new crime or failure-to-appear-in-court only 65 percent of the time.  More important, it grossly over-assessed African-American defendants as being higher risk than they actually were, while concluding just the opposite for white defendants.

Colorado is presently considering a move to a so-called no-money bail system.  Under the proposed new system, CPAT would be the critical component because of its role in determining who stays in jail or is released.

Even more troubling is the lack of forethought and accountability that went into the design and implementation of CPAT tool.  It has never even been tested for gender or racial bias.  The builders of the tool did not bother to ask about this crucial component and, apparently, users of the tool don't care to ask either.  The fact is that age, gender, national origin and race, which are federally-protected classes and mandated to be free from discrimination, were ignored as factors when CPAT was created.

Repeated official requests I made to the various county pretrial programs for the underlying data behind the creation of CPAT were either denied or ignored.

The utter lack of due diligence and transparency in the construction of the CPAT tool has become, with great justification, an albatross around the neck of overly-zealous reformers.  In light of the growing number of bipartisan groups and academics protesting its use, Colorado stands at the precipice of a criminal justice nightmare.

The use of risk assessment has been attributed to growing mass incarceration and gives even greater power to county governments to jail defendants without offering them any recourse.  Rather than reducing jail populations and creating a more fair system, it does the exact opposite.   Hiding behind a computer algorithm, it creates an expanding bureaucracy of probation officers and a mathematical super-highway to lock-up more people.

As bad as things are looking at the moment, an even bleaker scenario looms ahead if reformers succeed in changing the Colorado Constitution to eliminate citizens’ fundamental right to bail.  It is clearly their intent and Coloradoans should be horrified at the prospect.

Citizens need to call on their county governments and public officials to put a stop to the wholesale hijacking of the criminal justice system.  The creation of a dictatorial black-box algorithm to decide bail or conditions of release is fundamentally wrong and its use in our state must end immediately.

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