DANGER AHEAD: RISK ASSESSMENT AND THE FUTURE OF BAIL REFORM John Logan Koepke and David G. Robinson* In the last five years, legislators in all fifty states and many localities have made changes to their pretrial justice systems. Reform efforts aim to shrink jails by incarcerating fewer poor, low-risk defendants, and particularly, fewer racial minorities. Many jurisdictions are embracing pretrial risk assessment instruments — statistical tools that use historical data to forecast which defendants can safely be released — as a centerpiece of these changes. Scholars, system practitioners, advocates, and journalists are increasingly questioning the extent to which pretrial risk assessment instruments actually serve these goals. Existing scholarship and debate centers on how the instruments may reinforce racial disparities, and on how their opaque algorithms may frustrate due process interests. In this article, we highlight three underlying challenges that have yet to receive the attention they require. First, today’s risk assessment tools make what we term “zombie predictions.” That is, the predictive models are trained on data from older bail regimes, and are blind to the risk-reducing benefits of recent bail reforms. This will lead to predictions that systematically overestimate risk. Second, the “decision- making frameworks” that mediate the court system’s use of risk estimates embody crucial moral judgments, yet currently escape public scrutiny. Third, in the longer term, these new tools risk giving an imprimatur of scientific objectivity to ill-defined concepts of “dangerousness”; pave the way for a possible increase in preventive detention; and may entrench the Supreme Court’s historically recent blessing of preventive detention for dangerousness. We propose two vital steps that should be seen as minimally necessary to address these challenges. First, where they choose to embrace risk assessment, jurisdictions must carefully define what they wish to predict; must gather and use local, recent data; and must continuously update and calibrate any model on which they choose to rely, investing in data infrastructure where necessary to meet these goals. Second, instruments and frameworks must be subject to strong, inclusive governance. * Respectively, Policy Analyst, Upturn; Managing Director and co-founder, Upturn and Adjunct Professor of Law, Georgetown University Law Center. The authors are grateful to those who provided feedback and guidance on drafts of this Article, including Alvaro Bedoya, Robert Brauneis, Julie Cohen, Rebecca Crootof, Malcom Feeley, Brandon L. Garrett, William Isaac, John Monahan, Janet Haven, Daniel J. Hemel, Sarah Lustbader, Sandra Mayson, Paul Ohm, Andrew Selbst, Megan T. Stevenson, Annie J. Wang, and Rebecca Wexler; to participants in workshops at Georgetown University Law Center, the Information Society Project at Yale Law School, and the Data & Society Research Institute; and to many others who have helped shape and continue to stimulate our thinking, including Mark Houldin, Alec Karakatsanis, Kristian Lum, Hannah Sassaman, and, of course, all of our colleagues at Upturn. We are solely responsible for any remaining errors. Upturn receives substantial support from the Ford, MacArthur, and Open Society Foundations. Both authors are co- directors (with John Monahan and Kristian Lum) of the MacArthur Foundation’s Pretrial Risk Management Project, which provides practical guidance for practitioners on the issues that arise when quantitative risk assessment tools are incorporated into the pretrial decision-making process. 2 Danger Ahead [17-Mar-18 INTRODUCTION ..........................................................................................3 A. The Story of Springfield .....................................................................3 B. Bail, Reform, and Risk Assessment ....................................................4 I. AMERICA’S CONTESTED APPROACH TO BAIL .........................................6 A. The Origins of American Bail ............................................................7 B. The Civil Rights Era: Fighting to End Poverty Jailing ........................8 C. The 1970s and 1980s: Reversing Course to Address “Dangerousness” ............................................................................................................. 10 II. Bail in Practice Today ........................................................................ 16 A. Motivations for Reform .................................................................... 17 B. The Shape of Current Reforms: Away from Money, Toward Risk .... 18 III. THE CHALLENGES OF PRETRIAL RISK ASSESSMENT ......................... 21 A. How Pretrial Risk Assessment Works............................................... 22 B. Zombie Predictions ........................................................................... 24 1) Today’s Predictions Follow Yesterday’s Patterns ...................... 24 2) Replacing or Cabining Money Bail Could Reduce the True Risk of Rearrest for Those Released ...................................................... 35 3) Zombie Predictions May Dampen the Positive Effects of Other Reforms ..................................................................................... 36 C. Frameworks of Moral Judgment ....................................................... 39 1) Undemocratic Justice ................................................................ 40 D. Longer-term Dangers ....................................................................... 42 1) Insulating Nebulous Concepts of “Dangerousness” From Scrutiny ........................................................................... 42 2) The Expansion of Preventive Detention ..................................... 43 3) Conceding Salerno .................................................................... 44 IV. ADDRESSING THE CHALLENGES ......................................................... 49 A. Relevant, Timely Data ...................................................................... 49 1) Risk Assessment Tools Should Always Rely on Recent, Local Data ................................................................................ 49 2) Continuously Compare Predictions Against Outcomes .............. 50 3) Focus on the Risks that Matter Most .......................................... 52 B. Strong, Inclusive Governance ........................................................... 54 1) Risk Assessments and Frameworks Must Be Public ................... 54 2) Community Oversight of the Tools and Frameworks is Essential ............................................................ 56 V. CONCLUSION ....................................................................................... 57 17-Mar-18] Danger Ahead 3 INTRODUCTION A. The Story of Springfield* Springfield County has an open secret: It keeps many low-income people in jail who could safely be released. Two years ago, policymakers in Springfield joined a national trend, approving a suite of bail reform efforts that they hoped would dramatically reduce the jail population. Their goal was to hold in jail only the few defendants who are too risky to safely release, without needlessly subjecting many low-income defendants to the life-altering consequences of even a short jail stay. The centerpiece of Springfield’s bail reform was its adoption of a popular pretrial risk assessment tool, which advises judges at arraignment. County leaders and local advocates believed that the tool would lead judges to release more defendants, would reduce existing racial disparities in the jailed population, and would reduce rearrest and missed court dates among those who are released. Buoyed partly by their optimism about the new computer tool, policymakers also approved several new initiatives that strengthen alternatives to pretrial incarceration, including drug counseling, text message reminders of upcoming court dates, and ankle-worn GPS monitors that can be mandated in lieu of incarceration. But the effects of Springfield’s bail reforms were not what local leaders hoped. Springfield’s average pretrial jail population remained the same, as did the average length of stay. The number of defendants jailed without any bail offer increased. The number of individuals with non-financial conditions of release, especially GPS monitoring, skyrocketed. Rearrest rates remained the same, while failure to appear rates rose slightly. And magistrate judges disregard the risk assessment tool’s recommendations in nearly half of cases. Nearly all of these departures are to detain someone who the tool had recommended for release. Two years after what was supposed to be landmark reform, local leaders are left asking: What happened? First, Springfield’s pretrial risk assessment tool has a numbers problem. The tool’s predictions are based on historic patterns in the combined data of many other jurisdictions, places that often had higher crime rates and offered little-to-nothing in the way of pretrial services, during the periods when the data was generated. Further, the tool’s predictions are neither tailored to Springfield nor updated to reflect the ways that Springfield’s other recent reforms have impacted pretrial risk. Taken together, these discrepancies have the perverse effect of not only making the accused in Springfield appear riskier than they truly are, continuing patterns of unneeded jailing and encouraging overuse of the new GPS monitors. Second, there is a moral judgment at the heart of every risk assessment