Bail decisions have traditionally been made by judges relying on intuition and personal preference, in a hasty process that often lasts just a few minutes. In New York City, the strictest judges are more than twice as likely to demand bail as the most lenient ones.
To combat such arbitrariness, judges in some cities now receive algorithmically generated scores that rate a defendant’s risk of skipping trial or committing a violent crime if released. Judges are free to exercise discretion, but algorithms bring a measure of consistency and evenhandedness to the process.
The use of these algorithms often yields immediate and tangible benefits: Jail populations, for example, can decline without adversely affecting public safety.
In one recent experiment, agencies in Virginia were randomly selected to use an algorithm that rated both defendants’ likelihood of skipping trial and their likelihood of being arrested if released. Nearly twice as many defendants were released, and there was no increase in pretrial crime.
New Jersey similarly reformed its bail system this year, adopting algorithmic tools that contributed to a 16 percent drop in its pretrial jail population, again with no increase in crime.
Reacting to a risk-assessment algorithm used by the probation department in Broward County which was criticized in a widely cited ProPublica article, the authors insist that:
It is not biased algorithms but broader societal inequalities that drive the troubling racial differences we see in Broward County and throughout the country. It is misleading and counterproductive to blame the algorithm for uncovering real statistical patterns. Ignoring these patterns would not resolve the underlying disparities.On our podcast, Amanda Marzullo and I concluded that the addition of a right to counsel for indigent defendants at bail hearings could add an additional layer of protection and a means to make an individualized case for specific defendants whose situation may be more sympathetic then their algorithmic scores. So not just risk-assessments, but risk-assessments-plus. The authors similarly conclude algorithms are only one part of a broader puzzle: they "are not a panacea for past and present discrimination. Nor are they a substitute for sound policy, which demands inherently human, not algorithmic, choices."
The Supreme Court ruled that the sixth amendment right to council applies to every phase of a criminal proceeding up to the final ruling of the appeal. If a bail hearing is not a phase of the criminal proceeding, it should be eliminated. But since the same amendment guarantees the right to a reasonable bail, it goes that the right to an attorney during the bail hearing is also included. When will the courts recognize this?
ReplyDeleteThere's a legal reason for that, I forget what it is. I believe the courts don't consider a criminal proceeding to have commenced until a grand jury indictment or misdemeanor information has been filed, but perhaps some attorney-reader can clarify.
ReplyDeleteThe sixth amendment right to counsel attaches at “critical stages of a criminal trial.“ basically it attaches during the trial and certain essential preliminary hearings. I believe the argument goes that setting fail it’s not considered a critical stage, although I think we can all agree that that is nonsense.
ReplyDelete“Unlike the Fifth Amendment right to counsel, which attaches in the context of custodial interrogation, see Miranda v. Arizona, 384 U.S. 436 (1966), the Sixth Amendment right to counsel entitles the accused to effective assistance of counsel at the "critical stages" of the criminal justice process, including during trial and during certain pretrial proceedings. (United States v. Wade, 388 U.S. 218, 224 (1967); United States v. Ash, 413 U.S. 300, 310 (1973) (certain pretrial proceedings "might appropriately be considered parts of the trial itself" when the defendant is "confronted, just as at trial, by the procedural system, or by his expert adversary, or by both.").)”