Texas: El Paso County Creates a Risk Assessment Shred-a-Thon Under Threat of Litigation as Momentum Against Pretrial Risk Assessment Continues to Grow
On October 1, 2018, El Paso County implemented its new bail policy. El Paso’s new policy is based on the use of a risk assessment tool and the expansion of unsecured bonds and releases on free bails. This risk assessment process has previously been called into question by us when we discovered that the director of the program wanted to included fatherlessness as a factor. We then threatened to sue El Paso County over the unconstitutional use of the risk assessment, and the fact that the risk assessment has never been tested for bias and is certainly not been shown to make the process worse.
Instead, now we know why the County is being so resistant. A Magistrate Judge, as part of the implementation of the new policy which she emailed to all judges, orders that: “All risk assessments on call cases shall be shredded.” It is not to be loaded into the Courts’ computer system, and instead only the pretrial services report is to be loaded into the Courts’ computer system.
So, when it comes time to ask how the tool is performing, we will all know the answer: that there will likely be no way to know what happened because there will be no records to analyze what happened. Will the tool magnify inherent bias? Will the tool work? We may never know. Of course, we’ve taken again to firing a number of records requests asking for all of the shredded reports. Hopefully the recent ones will at least come in a plastic bag that looks like they were just rescued at the tail end of a shred-a-thon event.
Nationally, the movement against risk assessments has continued to pick up steam in recent months with states and local governments forcing transparency of the risk assessments and limiting trade secret protections, questioning the use of the risk assessments altogether (80 digital groups 100 civil rights groups), and in particular state legislatures in any number of states from coast-to coast-rejecting the creation, expansion, or further implementation of risk assessment tools. This included the Idaho Legislature ending the Arnold Foundation pilot project in Iowa absent further legislation. Even John Arnold now supports further transparency of the risk assessment process.
We are now left to wonder—if the El Paso risk assessment tool is so scientific and computerized, why can it all be erased using a paper shredder? Inquiring minds want to know.