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The role of risk assessments in pretrial decisions faces new scrutiny.

California’s SB 10 establishes a pretrial services agency in every county across the state and requires judges to rely on a risk assessment score to guide their pretrial decisions. It’s not the only place institutionalizing the use of pretrial risk assessments.

In 2017, New Jersey implemented a new pretrial justice system with a risk assessment instrument developed by the Laura and John Arnold Foundation.For New Jersey’s bail statute, see New Jersey Legislative Statutes § 2A:162-15 et seq. (2014). On its use of the Arnold Foundation’s Public Safety Assessment (PSA), see New Jersey Courts, “Public Safety Assessment: New Jersey Risk Factor Definitions – March 2018,” Judge Glenn Grant, the administrative director of the New Jersey courts, testified before the state legislature in April that the pretrial jail population dropped 20 percent in the law’s first year of implementation.Phil Gregory, “Administrative Director of NJ Courts Says Bail Reform Has Eliminated Injustices,” WBGO, April 17, 2018.

But risk assessment has its critics, who say the tools can perpetuate racial and other structural biases that are used to justify unnecessary and inappropriate detention, especially of poor people and people of color.Laurel Eckhouse, “Big Data May Be Reinforcing Racial Bias in the Criminal Justice System,” Washington Post, February 10, 2017. In July, the Leadership Conference for Civil and Human Rights, the largest civil rights coalition organization in the country, released a statement endorsed by 115 signatories, including public defenders, civil libertarians, grassroots groups, and racial justice organizations ranging from the NAACP to the Electronic Frontier Foundation, cautioning against the use of pretrial risk assessment instruments.The Use of Pretrial Risk Assessment Instruments: a Shared Statement of Civil Rights Concerns, 2018. If pretrial risk assessments are to be used, the Leadership Conference’s statement proposed some standards and safeguards, such as using pretrial risk assessment tools only to justify pretrial release decisions and never as the sole basis to justify pretrial detention.The Use of Pretrial Risk Assessment Instruments: a Shared Statement of Civil Rights Concerns, 2018. The statement also proposed measures to increase transparency, oversight, and accountability for risk assessment instruments when used, including independent validation, opportunities for community input, and vigilant monitoring of results.Ibid. Also see Megan Rose Dickey, “Bail Reform’s Complex Relationship with Tech,” TechCrunch, May 20, 2018.

Another frequently levied criticism of risk assessment tools is that they alone cannot shift judicial culture or norms of bail setting. In 2016, Alaska’s Legislature passed SB 91, a comprehensive criminal justice reform bill that included many provisions for bail reform. A year later, in response to a slight uptick in crime, the legislature voted to roll back many of the key bail provisions.Sean Maguire, “HB 312 Ends Mandatory Release for Defendants & Allows Out-Of-State Criminal Histories,” KTUU, May 11, 2018. HB 312, which became law in June, widens the net for what can be considered “prior criminal history,” and gives judges more discretion to override risk assessment scores and detain people.Alaska HB 312 (2017).