This week, JLF’s Jon Guze published a research brief on the criminal risk assessment tools many judges and magistrates use to aid in their pretrial bail decisions. In North Carolina, as in many states, judges and magistrates must decide whether or not to release someone until their trial, set bail, and/or detain the accused based on their likelihood of returning for trial and likelihood of reoffending during the interim. Guze explains:
Critics of the current system claim that magistrates and judges systematically err on the side of caution, and, as a result, too many defendants are unnecessarily detained prior to trial. The critics may well be right. Making the right pretrial determination in every case would be hard under the best of circumstances, but it’s made even harder by the fact that, in most jurisdictions, it must be done for large numbers of defendants in quick succession.
To improve matters, a growing number of magistrates and judges, including some in North Carolina, have been using computerized risk assessment tools to help them make objective decisions based on data rather than intuition.
These tools analyze sets of relevant statistical information and assign accused individuals a relative risk factor. Judges use these risk factors to aid in their pretrial decisions. These tools have caused much debate in the criminal justice community. For instance, Guze quotes from a joint statement released last month by more than two dozen academics, suggesting judicial decision-makers discontinue the use of these risk assessment tools:
Actuarial pretrial risk assessments suffer from serious technical flaws that undermine their accuracy, validity, and effectiveness… To generate predictions, risk assessments rely on deeply flawed data, such as historical records of arrests, charges, convictions, and sentences. This data is neither a reliable nor a neutral measure of underlying criminal activity. Decades of research have shown that, for the same conduct, African-American and Latinx people are more likely to be arrested, prosecuted, convicted and sentenced to harsher punishments than their white counterparts. Risk assessments that incorporate this distorted data will produce distorted results. These problems cannot be resolved with technical fixes. We strongly recommend turning to other reforms.
According to Guze, three local academics—Sarah Desmarais, professor at NCSU, and Brandon Garrett and Cynthia Rudin, two professors at Duke—responded with their own joint statement. On the matter of criminal history, the professors explain:
The authors also criticize the use of criminal history data in pretrial risk assessment. … However, that is exactly the kind of information that judges consider when they don’t have the benefit of these tools. One would be hard-pressed to find a set of bail and sentencing guidelines that does not include criminal history as a major component in a person’s pretrial release determination or sentence.
To call risk assessment fundamentally flawed suggests that we should abandon reforms and keep things the way they are. Instead, we need to give judges better information. No human being is an expert predictor. Relying on empirical data is far superior to going with one’s gut, if it is the right data, carefully analyzed, and presented in such a way as to minimize bias. In fact, statistical tools can be specially designed to help reduce the biases that are — obviously — inherent in the data…
Risk assessment tools and the promise they hold to improve on judges’ and magistrates’ current decision-making processes should not be dismissed simply because they aren’t yet perfect.
Guze agrees with the approach these local professors take in their statement. Guze writes:
By taking the kind of common-sensical, fact-driven approach advocated by Desmarais, Garrett, and Rudin, a bipartisan coalition of criminal justice reform advocates have accomplished a great deal over the last fifteen years, not just here in North Carolina, and across the country. Extreme, ideologically driven posturing could destroy that coalition and make future criminal justice reform much more difficult.