On bail algorithms, non-traditional alliances and moral outrage

On bail algorithms, non-traditional alliances and moral outrage

(excerpt from Boise Weekly, Feb 27, 2019)

Rep. Greg Chaney (R-Caldwell) says his name will be attached, as a sponsor or co-sponsor, to only a few proposed measures at the Idaho Statehouse this year.

"Certainly fewer than years past. I've been a bit more selective," he said. "Let's see, I'm a co-sponsor on the hemp bill."

That would be the much-discussed House Bill 122 that, if approved, would differentiate the crop from marijuana, recognizing hemp as a commodity.

"But I would say I'm only going to attach my name to four or five bills this year. For me, lately, it's about building relationships, issue by issue," said Chaney.

One of those issues that warrants attention is what he says is racial and/or gender bias inside algorithms used to determine bail or conditions of release from jail pending trial. Chaney likened the algorithms, used every day in courtrooms across Idaho, to the movie Minority Report starring Tom Cruise. Readers may recall that the 2002 sci-fi film was the cautionary tale of a dystopian future where algorithms tagged innocent citizens for arrest, even though crimes had yet to be committed. House Bill 118, which addresses that algorithm issue, is sponsored by Chaney, a staunch Republican, and Sen. Cherie Buckner-Webb (D-Boise), a staunch Democrat. Even more intriguing is the fact that the Idaho Sheriff's Association said it opposed the initial bill, while the American Civil Liberties Union of Idaho supported it. The bill has been sent to the so-called "amending order" of the House, meaning Chaney will have to rework some of the language of the initial measure, but he's still confident about its chance of success.

In between committee meetings and House floor votes, Chaney spoke with BW in his Statehouse office about his proposed bill and its unlikely supporters and detractors.

It's interesting to note where certain public and nonprofit entities have landed on this issue. Can I assume that you haven't, in previous measures, had the full support of the ACLU?

Just this morning, my wife commented on this strange dynamic. Yes, there have been bills that I've worked on that prompted protests or lawsuits from the ACLU. That said, the No. 1 partner on a bill that I sponsored last year, the Driving Without Privileges rewrite, was the ACLU.

The No. 1 rule in politics is: "It depends."

That's exactly right. I also joke that when you get to the House Committee on Judiciary, Rules and Administration, party affiliations shuffle. You're not necessarily a Republican or a Democrat. You have those in favor of reform and those in favor of tradition. When it comes to criminal justice issues, you have a really strange dynamic.

How would you best describe, to a layperson, the intent of HB 118?

There are computer programs that suggest to judges how much bail they should set for you or even how long a jail sentence they might hand down. And the way these computer algorithms work isn't available for inspection. It's a secret. And sometimes, we find that those results are heavily biased. We've heard testimony that 31 of Idaho's 44 counties are using systems like this, but we're not exactly sure what they're using. We had a professor from Boise State come in, representing himself, not the university, and he said the most disturbing thing is that when there have been attempts to look at the algorithms, they've been denied.

Are the software providers claiming that these algorithms are trade secrets?

Exactly. So, they don't have to turn it over. One of the things that we're going to be focusing on in the bill is public accessibility to the methodology.

Is that why this bill has been sent to the amending order?


I've been around the legislature long enough to know that, often, when a bill is sent to the amending order, it's sent there to die. What's the chance that your bill survives?

I'm highly confident. I think the provisions that we're going to focus on in amending the bill will offer wide-ranging acceptability. I even think that those who may have initially testified against the bill would now be in favor of the provisions.

What are your deadlines?

I'm expecting this to hit the House floor for a full debate and vote, and then we need to get it to the Idaho Senate by Monday, March 4.

The broader issue of bail in Idaho is a fascinating topic. Do you expect more measures to surface, possibly in next year's session, that will focus on bail reform?

I would imagine. I think some of the early opposition to my bill this year is that they were afraid that it would run crossways with future proposals concerning bail.

Can I assume that you're hearing from constituents on your bill?

Absolutely, a lot of positive feedback. I'm all for using technology to predict things, but if we're going to shrug off something that's unconstitutional, that's horrible. That's unacceptable. If we don't have the political will or moral outrage to deal with this now, what's to become of us in the next 10 or 20 years?

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