Should an Algorithm Determine Whether a Criminal Gets Bail?
By Kate Patrick
Civil rights groups signed a statement in late July calling for states to ditch pretrial risk assessment tools as a means of evaluating whether an individual accused of a crime should be detained pretrial, contending such data-driven tools do little to remedy racial disparities in the criminal justice system.
Conservatives, meanwhile, have expressed deep concerns over releasing individuals based on screenings that often don’t account for likelihood of risk to family members or the individual’s possession of a firearm.
Others contest these tools have significantly reduced the number of individuals detained pretrial in the states where they are used, potentially saving states billions of dollars, though that has often not been the case in practice.
Lucas County, Ohio, which includes Toledo, for example, has seen costs rise 23 percent in the three years since it first implemented its program. (The county began using a pretrial risk assessment tool from the Laura and John Arnold Foundation in 2015.)
Using the same tool in New Jersey, however, the pretrial detention population has dropped by 38 percent over the last two years.
Pretrial risk assessment tools have been implemented in some states as a replacement for money bail methods of detaining or releasing individuals pretrial.
The algorithmic tools use predictive analytics and various data points — like past criminal or re-arrest history, whether the individual failed to appear in court before, and socioeconomic factors like income and employment stability — to determine whether an individual is likely to show up for his or her court date and whether he or she is a threat to public safety.
Depending on the tools’ conclusions, judges may decide an individual should be released instead of held in jail pretrial.
The tool implemented in many of these criminal justice systems was funded by the Laura and John Arnold Foundation. The Arnolds, left-leaning Texas billionaires who made their fortune from defunct Enron and a hedge fund launched by Mr. Arnold, have pushed for their tool to be adopted in communities across the country.
In some states, the Arnold pretrial risk assessment tool has raised concerns as violent crime and rising costs have garnered the attention of lawmakers and residents.
In New Mexico, for example, Republican Gov. Susana Martinez said rising violent crime in the state makes the tool unusable. As violent crime has been on the rise, she said, releasing the accused pretrial is a serious threat to public safety.
According to a report issued by the Cuyahoga County (Ohio) Bail Task Force in Cleveland, current pretrial risk assessment tools like the Arnold Foundation’s do not take into account whether an individual released pretrial is a threat to spouses or family members. In some cases, evaluating an individual’s threat to public safety isn’t enough.
Perhaps the most incriminating case against pretrial risk assessment tools is the story of a 71-year-old man in San Francisco who was murdered by an individual who was on felony probation, had been re-arrested, then released pretrial based on a judge’s discernment after evaluating the individual’s threat to public safety via the Arnold pretrial risk assessment tool.
San Francisco has been a telling case study in the risks of implementing such a program. Of those released as a result of the assessment, more than a third were either booked on a new offense or failed to appear, according to a study.
While pretrial risk assessment tools can be modified to take into account many concerns — including racial bias — a wide variation in efficacy in early stages of implementation suggests that not all states and communities may have the conditions necessary for the tools to be successful. Further complicating the debate is the role of human discernment: ultimately a judge makes the final call, and judges make mistakes all the time.
The more common alternative, money bail, faces criticism, as well. Under the money bail method, individuals could pay their way out of pretrial detention. This method has long received criticism because it tends to favor the wealthy, leaving poorer individuals stuck in jail pretrial despite not yet being convicted.
“There’s a lot of criticisms about money bond and the fact that most people who are in jail are quite low income and might not get out of jail at all, and end up locked up longer because they’re poor,” said Jesse Jannetta, senior policy fellow at the left-leaning Urban Institute. “You can also have the criticism on the other hand which is that if you have access to a lot of resources you could get out even if the bond amount is quite high, so there’s a lot of pressure on money bond as a release mechanism because it’s unfair.”
Furthermore, being locked up pretrial could have a significant effect on a person’s quality of life and prospects, even if that person is found to be innocent in court.
“Jail incarceration, even if it’s short, has a lot of really bad consequences,” Jannetta said. “A day or two in jail could cause you to lose a job in at-will employment situations.”
Those seeking to reform the criminal justice system have targeted pretrial detention as a way to reduce prison populations and spending. The Prison Policy Initiative, which seeks to “expose the broader harm of mass criminalization,” found in 2017 that pretrial detention costs local governments $13.6 billion each year.
The civil rights groups’ statement argues that the criminal justice system and data-collecting methods are riddled with racial bias, so these tools could exacerbate racial disparities in prison populations. According to Census Bureau and Bureau of Justice statistics, more blacks are incarcerated than whites, respective to the U.S. black population and white population.
The civil rights groups concerned about the assessments argue that “pretrial risk assessment instruments, if used at all, should only identify groups of people to be released immediately,” and calls for the elimination of money bail in all states.
“We believe that jurisdictions should not use risk assessment instruments in pretrial decision making, and instead move to end secured money bail and decarcerate most accused people pretrial,” the statement reads.
The Laura and John Arnold Foundation — which provided New Jersey with its pretrial risk assessment tool — responded to the statement released by civil rights groups, affirming the need to make these data-driven tools “transparent; designed and adopted in ways that reduce racial disparity; implemented with community input; and validated regularly by independent researchers.”
But Daniel Nagin, professor of public policy and statistics at Carnegie Mellon’s Heinz College, thinks the racial disparity issue is far more complicated than it’s often made out to be by proponents and opponents of pretrial risk assessment tools.
“There have been criticisms of these instruments for a variety of reasons. One is that in some cases (the tools are) black boxes and lack transparency for how they work and how reliable they are in these predictions,” Nagin said.
“The other set of criticisms, which I think needs more scrutiny, is that because the instruments do use information of a person’s prior record and some … argue that prior arrests are contaminated by racial bias, therefore these instruments are perpetuating that bias.”
Nagin thinks the criminal justice system is “contaminated” by racial bias, but he also thinks pretrial risk assessment tools may be the best current option for sifting out that bias.
“It is devilishly difficult to measure the degree to which data are contaminated by racial bias,” Nagin said. “We really don’t have good answers to that question. Some civil rights groups are very persuaded that criminal justice statistics are contaminated very heavily by racial bias. I would say they are undoubtedly to some degree contaminated, but we don’t know how much. The issue here is, how do these instruments perform to the alternative?”
The alternative, Nagin said, is money bail or a judge deciding on his own whether an individual should be detained pretrial or not. While the former may discriminate against poorer individuals, the latter is subject to human error and potentially racial bias.
With the pretrial risk assessment tools, local governments can choose what kind of data points to evaluate and can prevent racial bias from creeping into the results.
“There is, just more generally, a lot of evidence in many different settings that very simple kinds of statistical tools do a better job at predicting how well human beings will perform than people’s judgments, and that’s been used in a whole variety of contexts,” Nagin said.
According to Jannetta, “There’s always a question here about what risk assessment is supplementing and replacing. What you’re using it to guide and make more uniform is judicial discretion. I think in most places pretrial risk assessment will be more consistent and fair than pure judicial discretion, but that’s a testable proposition.”
Specific tools may show strong biases, create risk to the population, and be costly to taxpayers, but there is the possibility that a better tool can be identified.
The success of such tools really depends on what data points are being evaluated, how the tools are designed, and who is using them and to what ends.
“Like with any tool, a lot depends on what you’re trying to do,” Jannetta said. “There are lot of people who are in jail right now who the risk assessment tool will tell you are very low risk and should not be in detention at all.”
While the New Jersey data show that the number of pretrial detainees has dropped by 38 percent over the last two years (the pretrial risk assessment tool was deployed in 2017) the Pretrial Justice Institute (which advocates for pretrial reform), noted in its 2017 State of Pretrial Justice report that there is still insufficient data on the efficacy of pretrial risk assessment tools because they are so new and haven’t been used for very long.
For example, there’s no data from New Jersey yet detailing whether more whites or blacks have been released pretrial, so there’s no way to quantify whether the tools are exacerbating, eliminating, or leaving any instances of racial disparity unchanged.
“(The civil rights groups’ statement) is an interesting argument, it gets to why are we detaining people pretrial,” Nagin said. “I think the argument they’re trying to advance is one of values, which says in a free democratic society, pretrial detention should be the exception, not the rule, you only use it if you have a really good reason that this person is a flight risk, but it has to be a very compelling argument or a compelling reason for thinking they’re really dangerous roaming free. But that’s a value judgment on which people can disagree.”
Because there still isn’t much data on the efficacy and efficiency of the tools due to still being in the early stages of implementation. There’s potential for the tools to improve safety and justice in some states, but depending on the different crime and cultural climates in communities, the tools could exacerbate existing problems if they aren’t modified to evaluate those conditions and properly weigh the risk of releasing violent individuals.
ABOUT THE WRITER
Kate Patrick reports on technology and finance news for InsideSources.com.
AS TRUMP ADMIN SEEKS TO QUIETLY WEAKEN FINANCIAL PROTECTIONS FOR U.S. TROOPS, BROWN & SENATE DEMOCRATS SOUND THE ALARM & DEMAND TRUMP ADMIN UPHOLD ITS DUTY TO SHIELD U.S. TROOPS FROM PREDATORY LENDING & FINANCIAL FRAUD
August 16, 2018
Recent Reports Indicate the Trump Administration is Planning to Undermine Key Aspects of the Military Lending Act & Make it Easier for Unscrupulous Lenders to Target U.S. Troops & Rip-Off Military Families
In New Letter to OMB Director Mulvaney, 49 Senate Dems – led by Senators Reed, Brown, Nelson, Tester, Donnelly and Schumer – Urge Trump Administration to Protect the Finances of Our Troops & Their Families: “The CFPB should not be abandoning its duty to protect our servicemembers and their families”
WASHINGTON, DC – In an effort to protect soldiers and their families from abusive financial practices, every Democratic member of the U.S. Senate, led by Jack Reed (D-RI), the Ranking Member of the Armed Services Committee; Sherrod Brown (D-OH), Ranking Member of the Banking, Housing, and Urban Affairs Committee; Bill Nelson (D-FL), Ranking Member of the Commerce Committee; Jon Tester (D-MT), Ranking Member of the Veterans’ Affairs Committee; Senator Joe Donnelly (D-IN); and U.S. Senate Minority Leader Charles E. Schumer (D-NY) are urging the Trump Administration not to abandon its duty to protect our servicemembers and their families under the Military Lending Act (MLA).
The MLA was passed in 2006 with bipartisan support to help safeguard active-duty military members and their families from financial fraud, predatory loans, and credit gouging. The law caps the annual interest rate for an extension of consumer credit to a servicemember or his or her dependents at 36%.
This week, the New York Times reported that: “The Trump administration is planning to suspend routine examinations of lenders for violations of the Military Lending Act, which was devised to protect military service members and their families from financial fraud, predatory loans and credit card gouging, according to internal agency documents. Mick Mulvaney, the interim director of the Consumer Financial Protection Bureau, intends to scrap the use of so-called supervisory examinations of lenders, arguing that such proactive oversight is not explicitly laid out in the legislation, the main consumer measure protecting active-duty service members, according to a two-page draft of the change.”
And NPR reports that the Trump administration is also taking aim at financial protections for members of the military by proposing to ease restrictions on “gap insurance” that could open up servicemembers to getting cheated by predatory practices when they purchase cars.
Recognizing that U.S. troops face unique financial challenges and that the financial readiness of our servicemembers is directly tied to military readiness, the Senators called on Mr. Mulvaney not to halt military lending checks or undertake measures that would potentially harm U.S. troops and their families, writing: “The CFPB should not be abandoning its duty to protect our servicemembers and their families, and we seek your commitment that you will utilize all of the authorities available to the CFPB to ensure that servicemembers and their families continue to receive all of their MLA protections.”
The letter was signed by U.S. Senators: Reed, Brown, Nelson, Donnelly, Tester, Schumer, Mark Warner (D-VA), Dick Durbin (D-IL), Chris Van Hollen (D-MD), Tim Kaine (D-VA), Jeanne Shaheen (D-NH), Bob Casey (D-PA), Doug Jones (D-AL), Mazie Hirono (D-HI), Robert Menendez (D-NJ), Kirsten Gillibrand (D-NY), Richard Blumenthal (D-CT), Patty Murray (D-WA), Heidi Heitkamp (D-ND), Tammy Baldwin (D-WI), Elizabeth Warren (D-MA), Bernie Sanders (I-VT), Jeff Merkley (D-OR), Catherine Cortez Masto (D-NV), Tammy Duckworth (D-IL), Brian Schatz (D-HI), Michael Bennet (D-CO), Debbie Stabenow (D-MI), Sheldon Whitehouse (D-RI), Maria Cantwell (D-WA), Cory Booker (D-NJ), Angus King (I-ME), Christopher Coons (D-DE), Martin Heinrich (D-NM), Maggie Hassan (D-NH), Gary Peters (D-MI), Joe Manchin (D-WV), Ed Markey (D-MA), Tom Udall (D-NM), Tom Carper (D-DE), Claire McCaskill (D-MO), Patrick Leahy (D-VT), Chris Murphy (D-CT), Ron Wyden (D-OR), Tina Smith (D-MN), Ben Cardin (D-MD), Dianne Feinstein (D-CA), Amy Klobuchar (D-MN), and Kamala Harris (D-CA).
The 49 Senators noted that the U.S. Department of Defense has attested to the fact that the MLA helps save U.S. taxpayer funds and that needlessly stopping proactive MLA examinations would be both inefficient and irresponsible.
“In addition, for our servicemembers, especially those who are deployed overseas facing hostile fire, it is unreasonable to place the burden of detecting and reporting MLA abuses on servicemembers, especially when they should be given every opportunity to focus squarely on their missions,” wrote the Senators. “What the CFPB is reported to be contemplating is equivalent to forcing our armed forces to stop using radar, sonar, and other early warning technologies and instead react to threats as they occur. No one would force our armed forces to do so, and the CFPB should not similarly force any of its examiners to turn a blind eye. For generations, Americans have set partisanship aside and have made every effort to provide servicemembers and their families with all the resources and protections they deserve. We ask no less of you and, as such, seek your commitment that you will continue the CFPB’s tradition of ensuring that servicemembers and their families receive all of their MLA protections by utilizing all of the authorities available to the CFPB.”
Senate Democrats, led by Senator Reed, created the Office of Servicemember Affairs at the CFPB to serve as an independent watchdog for military personnel. The office focuses on consumer financial challenges affecting servicemembers and their families. It empowers servicemembers through financial education and works with CFPB examiners to ensure that all consumer protections are made available to servicemembers, while also monitoring complaints submitted by consumers to the CFPB, and coordinating with other federal and state agencies on military consumer protection measures.
The office has handled more than 90,000 consumer complaints from servicemembers and their families and taken action to help return hundreds of millions into the pockets of servicemembers affected by harmful practices.
Text of the letter follows (PDF attached):
August 15, 2018
Office of Management and Budget
725 17th Street, NW
Washington, DC 20503
Dear Director Mulvaney:
We write regarding reports that the Consumer Financial Protection Bureau (CFPB) will no longer protect servicemembers and their families by including the Military Lending Act (MLA) as part of the CFPB’s routine lender examinations due to a purported lack of authority. These reports are puzzling because the CFPB already possesses the authority to enforce the MLA and examine many types of lenders for the purposes of “detecting and assessing risks to consumers and to markets for consumer financial products and services.” The CFPB should not be abandoning its duty to protect our servicemembers and their families, and we seek your commitment that you will utilize all of the authorities available to the CFPB to ensure that servicemembers and their families continue to receive all of their MLA protections.
By enacting the MLA, Congress sent a clear bipartisan message that high-cost lending is a clear risk to military consumers that must be addressed to also protect military readiness. Indeed, among its provisions, the MLA caps the annual interest rate for an extension of consumer credit to a servicemember or his or her dependents at 36%. CFPB examinations and the CFPB’s Office of Servicemember Affairs have been critical components of ensuring the detection and prevention of risks to military consumers. Such examinations serve as the early warning system for MLA deficiencies so that they do not snowball into costly losses for servicemembers and avoidable litigation costs and penalties for lenders.
Given your senior role at the Office of Management and Budget, we are sure you are aware that the MLA also helps the Department of Defense (DOD) to save taxpayer funds based on the following DOD justification for its MLA rule:
“Losing qualified Service members due to personal issues, such as financial instability, causes loss of mission capability and drives significant replacement costs. The Department estimates that each separation costs the Department $58,250. Losing an experienced mid-grade noncommissioned officer (NCO), who may be in a leadership position or key technical position, may be considerably more expensive in terms of replacement costs and in terms of the degradation of mission effectiveness resulting from a loss of personal reliability for deployment and availability for duty.”
Needlessly stopping MLA examinations altogether and choosing instead to rely on reports of MLA violations after they occurred is further perplexing given that the CFPB is already conducting lender examinations of credit products that are also subject to the MLA. Such a policy decision would be both inefficient and irresponsible to require a CFPB examiner to ignore as part of his or her examination risks to military consumers who are protected by the MLA. In addition, for our servicemembers, especially those who are deployed overseas facing hostile fire, it is unreasonable to place the burden of detecting and reporting MLA abuses on servicemembers, especially when they should be given every opportunity to focus squarely on their missions.
What the CFPB is reported to be contemplating is equivalent to forcing our armed forces to stop using radar, sonar, and other early warning technologies and instead react to threats as they occur. No one would force our armed forces to do so, and the CFPB should not similarly force any of its examiners to turn a blind eye. For generations, Americans have set partisanship aside and have made every effort to provide servicemembers and their families with all the resources and protections they deserve. We ask no less of you and, as such, seek your commitment that you will continue the CFPB’s tradition of ensuring that servicemembers and their families receive all of their MLA protections by utilizing all of the authorities available to the CFPB. We request that you respond with your commitment no later than Monday, August 20.
Opinion: Kavanaugh Will Alter the ‘Fourth Branch’ — and That’s Good
By James P. Freeman
Unlike the rolling rallies “Rise Up for Roe” — the headlining nine-city tour of pro-abortionists who oppose the nomination of Judge Brett Kavanaugh on the ground that he would be part of a new conservative bloc on the Supreme Court to roll back Roe v. Wade — Americans are not likely to see this rally: pro-administrative state bureaucrats advocating for ever more intrusive government.
But they should consider preparing their signs and speeches. Kavanaugh’s presence on the high court will alter today’s technocratic state. And that is a good thing.
The prospect of the judge challenging the modern “bureaucratic fourth branch” is gaining attention.
Siraj Hashmi, commentary writer and video editor for The Washington Examiner, posted a clip identifying five issues that Kavanaugh would influence were he to be seated on the court. His order of priority: abortion, Obamacare, privacy rights, Second Amendment, and, last, what he called “agency power and separation of powers.”
For progressives who believe that too much government is not (and never) enough government, they will surely wish the last issue on Hashmi’s list drops out of the top five. But that is unlikely.
Writing in The Washington Post, Robert Barnes and Steven Mufson observe that “hot-button social issues such as abortion and race have so far dominated the debate about Kavanaugh’s nomination.” However, the authors rightly understand, “there is no more important issue to the Trump administration than bringing to heel the federal agencies and regulatory entities that, in Kavanaugh’s words, form ‘a headless fourth branch of the U.S. government.’”
Conservatives are cheering.
Last autumn, White House counsel Donald McGahn said in a speech to the Federalist Society, “The ever-growing, unaccountable administrative state is a direct threat to individual liberty.”
Last month, in the Los Angeles Times, Saikrishna Prakash and John Yoo wrote:
“Kavanaugh has written almost nothing significant about abortion or other ‘cultural’ hot topics; we know little about his legal theories on these matters. On the other hand, he has left a striking paper trail attacking the 20th-century administrative state, a system that operates as a kind of perpetual-motion machine for progressivism.”
Kavanaugh has directly challenged aspects of the bureaucratic fourth branch.
Of the more than 300 opinions involving Kavanaugh on the appellate circuit, nearly one-third of them involve the scope of the regulatory agencies. Two recent court cases provide insights into Kavanaugh’s thinking.
Last year, regarding the matter of a Federal Communications Commission net neutrality regulation imposed under President Barack Obama’s administration, Kavanaugh wrote: “Congress did not clearly authorize the FCC to issue the net neutrality rule. … The lack of clear congressional authorization matters. In a series of important cases over the last 25 years, the Supreme Court has required clear congressional authorization for major agency rules of this kind.”
Kavanaugh ruled earlier this year in the case PHH Corporation v. Consumer Financial Protection Bureau, of which an aspect of the sprawling bureau was declared unconstitutional. In what could be called the taming of the administrative state, he wrote, “This is a case about executive power and individual liberty.” Then he fired off a howitzer into the nearly impenetrable independent agency. “When measured in terms of unilateral power, the director of the CFPB is the single most powerful official in the entire U.S. Government, other than the President.”
Tellingly, Kavanaugh may be a benefactor to small business.
CNBC reported in July that “Main Street advocates are hopeful Kavanaugh will continue the Trump administration’s deregulatory tone, which has boosted sentiment among small businesses.” Karen Kerrigan, president of non-partisan Small Business & Entrepreneurship Council, told the business network, “(the judge’s opinions) related to unaccountable federal independent agencies are particularly important for small businesses, as navigating bureaucracy and not having the resources or recourse to challenge unfair rules is a daunting challenge for small businesses.”
Prakash and Yoo also offer some soothing balm to those romantics longing for pre-progressive government. “Kavanaugh’s paper trail,” they conclude, “indicates that he might very well seek to revitalize federalism and the separation of powers, rendering the administrative state more responsive and accountable.” That might be a radical concept for Democrats and Republicans today.
Isn’t that good for all Americans?
ABOUT THE WRITER
James P. Freeman is a former columnist with The New Boston Post and The Cape Cod Times. He wrote this for InsideSources.com.