Many jurisdictions across the country looking to reform their bail practices are turning to a risk-based framework of pretrial decision making. Those decisions are guided by a tool that aims to identify the potential pretrial risks and needs of arrestees to guarantee future court appearances and public safety. Commonly called pretrial risk assessment instruments, these tools are increasingly being relied on by magistrates and judges to make decisions about people’s liberty or detention while awaiting trial. Some local court systems have developed their own risk assessment instruments, while others, including the states of Arizona, Kentucky, and New Jersey, have adopted the Public Safety Assessment developed by the Laura and John Arnold Foundation.[/footnote]Laura and John Arnold Foundation, “Public Safety Assessment,”[/footnote] Looking in part at the adoption of risk assessment tools, the Pretrial Justice Institute released in November 2017 a report card of states’ progress toward greater pretrial justice.Pretrial Justice Institute, “The State of Pretrial Justice in America,” (New York: Pretrial Justice Institute), November 1, 2017.
But the use of pretrial risk assessment instruments is not without controversy. There has been growing debate about the pros and cons of these tools, such as a widely read piece by ProPublica suggesting that even where a tool is intended to be racially neutral, the instruments can perpetuate racial bias by relying on metrics such as number of arrests or age at first arrest that disproportionately impact people of color, who historically have been subject to overpolicing. One study, however, has found that if the pretrial release recommendations made by risk assessment tools are followed with fidelity, they still outperform subjective individual decision makers in accurately assessing pretrial risk and needs.Jon Kleinberg, Himabindu Lakkaraju, Jure Leskovec, et al., Human Decisions and Machine Predictions (Cambridge, MA: National Bureau of Economic Research, 2017). Also see John Jay College of Criminal Justice and Prisoner Reentry Institute (PRI), Pretrial Practice: Rethinking the Front End of the Criminal Justice System—A Report on the Roundtable on Pretrial Practice March 18-20, 2015 (New York: John Jay College and PRI, 2016), 19-20 (remarks of Marie VanNostrand). This is a topic of intense scrutiny in the field of bail reform, and journalists, academics, andlawyers have weighed in.