Historical Shift As Pretrial Risk Assessments Come Under Fire By The Largest And Most Vocal Former Proponents

Two of the largest public backers and state influencers of pretrial risk assessments have thrown in the towel and done a complete 180 on the use of pretrial risk assessments – now joining the chorus of those in opposition to the continued use of the magic 8-ball of algorithmic risk tools. 

The Pretrial Justice Institute (“PJI”) and the MacArthur Foundation have been two of the most vociferous advocates and funders for implementing the now-debunked pretrial justice regime, involving using “risk rather than money” to determine bail.  In fact, as PJI’s former CEO, now Executive Partner, Cherise Fanno Burdeen put it…we could end money bail today and use risk assessments tomorrow to “fix” the “cash bail” situation:

Instead, the Pretrial Justice Institute announced Friday a pivot away from the risk assessment policies for which it has advocated for most if not all of its 40 year history and now say that it doesn’t work.  Just like that…a stunning reversal.  As little as a few months ago, Burdeen and PJI were directly advocating for these policies.  Said the PJI Team on Friday:

“We now see that pretrial risk assessment tools, designed to predict an individual’s appearance in court without a new arrest, can no longer be a part of our solution for building equitable pretrial justice systems.”

What took PJI so long to jump on the pretrial risk assessment apology tour is anyone's guess, but it is nonetheless important to note that their friends at the MacArthur Foundation, which has been a major grant-maker to this very pretrial assessment nonsense, is now funding opposition research. 

In fact, one major research paper was quietly released in December by MacArthur, entitled, “Civil Rights and Pretrial Risk Assessment Instruments.”  In it, the authors assume from the outset that the assessments are flawed and summarize their work as follows:  “In this brief we focus on two questions. First: Why do many in the civil rights community oppose the use of pretrial risk assessment instruments? Second: What concrete reform strategies are available that would avoid risk assessment instruments, or would sharply limit their role?”

Still, many states and local governments (California, Colorado, Delaware, Indiana, Kansas, Michigan, Missouri, North Carolina) are steaming forward with expanding existing pretrial risk assessment programs or creating new ones.  At the very time PJI was calling for an end to pretrial risk assessments, the Colorado Crime Commission’s bill was introduced to expand pretrial risk assessment statewide and require all defendants to be screened within twenty-four hours of being arrested.  Meanwhile in Michigan and Indiana, the Michigan Courts are asking for money to continue a pretrial risk assessment pilot, and Indiana is taking its risk assessment statewide.  Of course, California tried to implement risk tools statewide with the passing of Senate Bill 10 in 2018…only to have the brakes applied when the voters put the measure on the ballot in November 2020. 

We certainly hope New Jersey is listening after reforming their system with one that centers around risk tools and preventative detention.  Is their self-proclaimed panacea of pretrial release programs as fair and just as they claim?  Their "black box" algorithm has recommended locking up without bail 24,227 defendants in 3-years while applying restrictive state pretrial release monitoring to 91.2% of defendants charged. 

How long will these jurisdictions continue to embrace debunked science that impacts public safety and trammels on the basic civil liberties of those accused?  The time to stop this nonsense is now.  The “science” behind these risk assessments has completely evaporated, and you can take that to the bank.  Still, elected officials across a wide range of states continue their hapless defense of pretrial risk assessments and the millions of dollars they want to spend on them that could instead be directly used to help criminal offenders or be put into crime prevention programs. 

We have cautioned jurisdictions to closely regulate risk assessments if they are to be used for at least the last decade.  As research has grown, we were one of the first organizations to conclude, in essence, that the “juice ain’t worth the squeeze,” meaning that the purported benefits to the state and defendants did not materialize and made the system worse in the end.  Indeed, it wasn’t fairer, it didn’t work better, and ultimately showed bias against protected classes while increasing incarceration. 

It is unfortunate that state and local governments have now spent billions of dollars (some of it from federal grants and grants from the MacArthur Foundation) on PJI’s grand experiment to fix pretrial release with risk assessments, and in many cases have hired significant permanent, now apparently unnecessary, pretrial services staffs nationwide to perform these now harmful and useless risk tools.  That, folks, is just plain sad, given that all of this money could have been spent on pretrial diversion, drug treatment, mental health treatment, gang prevention, putting more cops on the street, racial justice policies, or anything else that would have produced a positive benefit to the system. 

In the end, the right to bail and release on least restrictive conditions should never have depended on comparing a criminal defendant to other defendants using an algorithm based on past historical data.  That just plain never passed the sniff test, and looking back on it, we have to ask ourselves, how did we buy into this nonsense in the first place?  Is it not now fair that we demand holding accountable those who advocated for such policies?  Wasn’t the evidence there to call these tools into question years ago?  The cracks became evident in the foundation several years ago after the Propublica story and then the statement condemning the assessments in 2018 by the Leadership Conference of Civil Rights.  Let’s hope these former advocates of risk tools are as vocal in opposing the tools now and shutting them down as they were in advocating for them for the past several decades. They must set the record straight and help jurisdictions undo the damage that was done.

To conclude, as we have said for years, to go to the risk assessment regime is to make the past an unyielding future that does not permit us to depart from our past mistaken policies much less arrive at a new future in criminal justice reform.  We created the Fourth Generation of Bail Reform last year largely on the back of this very issue—because we knew this movement was over and it was time to look at more reasonable reforms that would hold up to constitutional muster.