San Francisco Bail Settlement Calls on the City and County to Support a System of Algorithmic Injustice and Completely Lets the Judges and State Courts Off the Hook
For four years, Equal Justice Under Law (EJUL) along with the powerhouse law firm of Latham & Wadkins have challenged the bail system in San Francisco as unconstitutional – specifically calling out the preset bail schedule that is used to set bail for those accused of a crime. Yet, unlike every other bail case it has filed, EJUL unusually DID NOT sue the judges in San Francisco. Instead, they targeted San Francisco Sheriff Vicki Hennessy to argue that the Sheriff enforced the unconstitutional bail schedule in San Francisco, which, as applied in this case to a class of indigent parties, was ruled by the judge to violate the due process and equal protection clauses because it unconstitutionally disadvantaged persons based on their wealth.
Now the Plaintiffs apparently have to come to terms with San Francisco Sheriff Hennessy. A recent news report indicates that “San Francisco Sheriff Vicki Hennessy and national law nonprofit Equal Justice Under Law have reached a settlement in the years-long legal battle.”
After four years of litigation, the answer to the indigent bail problem is now apparently eliminating bail schedules (which currently allow for immediate release for the majority of defendants), a biased computer risk assessment tool created by Enron Billionaire John Arnold and his Arnold Foundation and then potentially getting in front of a judge more quickly. We have, for years, pointed out this was easily solvable—the State of Florida has both a bail schedule to allow for immediate release and they manage to get everyone in front of a judge within 24 hours. Sound fair? That’s because it is. The San Francisco settlement, however, allows that period to extend in San Francisco to up to 30 hours in all cases, and offers NO WAY to get out prior to the expiration of that time period (because they have eliminated the bail schedules) which will force judges to rely heavily on a debunked algorithm to make the decisions in the first place if they fail to act.
The City and County of San Francisco now has to approve and fund the settlement, which includes approving funding to embed this non-transparent pretrial risk assessment algorithm tool into a 24 hour a day risk assessment process. In fact, if the judges are unable to set bail under the time-lines created in the settlement, the Arnold Foundation tool will decide who stays in jail and who gets out. This is a stunning delegation of power to a computer, the likes of which we have not seen in this country.
And what about these risk assessment tools?
Just last month, 27 prominent academics, including those from Harvard, MIT, Princeton, UC Berkeley, Columbia, and others have called for an end to the very risk assessment being used in San Francisco because it embeds racial disparities and does not accurately predict risks of failing to appear or committing a new crime. In fact, the academics issued a letter to the Judicial Council of the State of California instructing them to cease and desist in moving forward with plans to implement a statewide pretrial risk assessment tool. Instead, the City and County of San Francisco is now being asked to fund the use of the risk assessment in all cases whatsoever and then to use it to act as a judge to specifically decide detention or release when a judge does not act in the time required under the settlement (18 to 30 hours).
Risk Assessment Tools have been under scrutiny for some time now…yet San Francisco and the California Supreme Court have decided to ignore the warning signs. Over 110 civil rights groups have opposed risk tools, including the ACLU, Civil Rights Corp, Upturn, and the NAACP. Academics and scholars have been piling on the last 2-years calling out risk tools as biased against protected classes. Said Professor Robert G. Morris on the Arnold Foundation Pretrial Safety Assessment (PSA) used in San Francisco:
It would be inadvisable to rely solely on a generalized risk assessment tool, such as the Arnold Foundation’s PSA to predict FTA across the United States. In fact, it is my opinion that the PSA tool, as executed, is fundamentally flawed in its attempt to predict risk.
Further, I am not aware of any validation of the Arnold Foundation’s Public Safety Assessment PSA (“PSA”) specific to San Francisco. The PSA claims to be based on a considerable volume of defendant data (although I am not aware of this data being made available to the public); however, it does not account for key features such as geographic variation (e.g., neighborhood effects), behavioral development, peer network quality, employment, and more. The PSA over relies on criminal conviction history which is known to have been historically unfair to minority groups, and is prone to arbitrarily and recklessly assigns the same amount of weight (i.e., for risk) to extremely different defendants (e.g., a one-time conviction misdemeanant and a serial felon), is generally mis-specified, has not been appropriately validated, and more. These limitations should be considered fatal to the tool’s predictive validity, particularly in production and at scale.
In addition, there is no reduction or elimination of “cash bail” as a result of this settlement. The same judges who set the bail schedule and then enforce and rely on the bail schedule, will now be setting bail in all cases. Other states already do this, and there is no indication that it will result in a reduction of the use of cash bail, even if it eliminates the schedules themselves. In fact, it’s like to expand onerous, liberty-restricting conditions like ankle monitors and pre-conviction supervision. For most, the least restrictive form of release is in fact cash bail. Of course, all of those who bailed out using the schedule before will now have to sit and wait for a judge, so this will actually lead to an uptick in the time people will spend in jail awaiting trial, likely increasing substantially the time to release from jail. In one jurisdiction that went this direction by eliminating the bail schedule, the number of pretrial detainees that spend at least one night in jail who were then ultimately released increased by 141%. In fact, data collected and analyzed in the case demonstrated that the median time to release for someone posting a monetary bail was 9 hours and the release on own recognizance was 23 hours. Because the settlement permits defendants to be held for up to 30 hours, nearly all of those who would have posted monetary bail will now be held two or three times longer and those released on their own recognizance through the settlement.
In summary, the settlement eliminates one option for release through the use of bail schedules and increases the time spent in jail for everyone, now relying on biased risk assessment tools to do the work of judges. And yes, all on the backs of taxpayers.
The next thing the Board of Supervisors might want to ask themselves: why would they authorize any settlement at all? The City and County of San Francisco did not set the bail schedule. The County and no county officials participated in creating it whatsoever. The Sheriff is of course duty-bound to follow California law, which requires judges to set the bail schedule in the first place. Plus, the Sheriff opposed the continuation of the bail schedule throughout the pendency of the case. The State’s Attorney General similarly refused to defend the bail schedule throughout the litigation. The proper parties, in reality, are the judges and the State of California, not the City and County of San Francisco or the taxpayers.
So why should San Francisco taxpayers have to now pay millions of dollars in legal fees for something that judges did, who set and abided by a bail schedule, which was required by an act of the legislature that was ultimately signed by the Governor? Either the judges unconstitutionally implemented the law as applied to indigent parties or state law was simply unconstitutional. Either way, San Francisco did nothing wrong, and taxpayers should not have to compensate the Plaintiffs aggressive and unreasonably expensive lawyers for the end result of this settlement, which is merely that judges are now going to set bail in every case rather than having a schedule and then making adjustments some hours later. Towards the end, the Plaintiffs and Sheriff Hennessy were fighting over periods of hours about when someone will see a judge, where judges would have seen all of those arrested who didn’t bail out anyway.
The Board of Supervisors and the public should reject this settlement. San Francisco did nothing wrong, and San Francisco, like Florida, can do better than this settlement and should not have to pay millions to the plaintiffs for judges to simply have quicker hearings and more robust due process.
There is no need to fund the running of a pretrial risk assessment 24-hours a day in order to fix this problem, especially when prominent scholars continue to say that process is flawed and discriminatory. The County is being asked to enshrine algorithmic pretrial justice into a federal settlement decree that will be supervised by a federal judge for years into the future, and will then get the pleasure of paying millions of dollars to plaintiffs lawyers for solving something judges could have easily fixed and should now be required to fix.
For if anyone offended the constitution of the United States in this case, it was the legislature of the State of California or the judges implementing such legislative acts, and not the City and County of San Francisco.