STORY: "Justice by algorithm" by George Joseph, published by The Atlantic (Citylab) on December 8, 2016.
SUB-HEADING: "Baltimore uses a little-known risk assessment tool to help make bail decisions. It's supposed to be an objective way to keep non-violent defendants out of jail, but some fear it may be reinforcing racial bias."
GIST: "Baltimore uses a little-known
risk assessment tool to help make bail decisions. It’s supposed to be an
objective way to keep non-violent defendants out of jail, but some fear
it might be reinforcing racial bias. "Clarence Barnham is a soft-spoken
53-year-old man with a wheezy voice and bright, twinkling eyes. He’s
struggled with drug addiction and mental illness for over a decade, and
has a long arrest record because of it. Nearly all of his fourteen
convictions have been for drug charges; he’s never been accused of a
violent crime and only missed a court date once. It’s not the kind of a criminal history that would seem to indicate that
Barnham, who’s lived in West Baltimore his whole life, would be a
public safety or flight risk. But after an August arrest for
distribution and possession of heroin (charges he contests), he sat in
jail for three months, unable to pay his $25,000 bail. In
October, having found an in-house drug rehabilitation program through
his public defender, Barnham was granted another bail review. At the
rehearing, both Barnham's public defender and the prosecutor agreed he
should be released without bail, citing the drug treatment program, his
steady employment and family support network. But the pretrial service
agent insisted on $5,000 bail—reversing his own agency's position in the
first hearing and even interjecting after the prosecutor spoke to
insist on bail being given. Why would pretrial services—which is supposed to be a neutral party that
provides background information on defendants to judges—be tougher on a
defendant than the prosecutor? Part of the answer may lie in the secret pretrial risk score the agency generated for Barnham. Baltimore’s Pretrial Release Services,
like many agencies nationwide, uses a risk assessment tool to give
defendants proceeding through the court system scores based upon
statistical likelihoods of failure to appear or rearrest. These scores
are supposed to help pretrial service agents recommend bail decisions to
judges based on objective, standardized criteria. But no one else
involved in the case, including the defendant and their attorney, gets
to see or even hear about their score, much less the impact it has on
their bail recommendation. The use of risk assessment tools has rapidly spread to many different parts of the criminal justice system, from bail to parole, in jurisdictions across the country. Less than 10 percent of U.S. jurisdictions use pretrial risk assessments today, but support for their introduction is growing in cities and states nationwide, financed by foundations
interested in finding ways to release more “low-risk” defendants—and
cutting down on the billions of dollars spent to hold them. But in Baltimore, even some defense
attorneys are unaware of the use of this tool in the bail recommendation
process. Little is known about the factors selected to calculate
risk—and the potentially disparate impacts these calculations may have
on bail recommendations for defendants from highly policed communities. Transparency
on how these risk scores are being interpreted—and how judges are
weighing the recommendations based on them—is especially important, as
calls for bail reform through the expansion of these tools are growing in Maryland. ".........“There’s no rational relationship between one’s ability to make bail and one’s threat to public safety.” Several
of the criteria the tool weighs—such as age of first arrest and number
of arrests—mean that those like Barnham who live in in high-poverty and
non-white areas are more likely to be considered high risk by pretrial
services because of greater, and often discriminatory,
contact with law enforcement. Such assessments could accurately reflect
historical data showing that residents of highly-policed black
neighborhoods in Baltimore are more likely to be rearrested pretrial or
miss court dates. The key question then becomes: How is this information
used? Advocates of
risk assessments say that, in addition to weeding out low-risk
defendants, these tools can be used to delineate what social supports,
such as drug rehabilitation and court date reminders, certain high-risk
defendants need—and identify the fraction of them that must be detained
for public safety. Critics contend that the intended use of the tool is
beside the point, if pretrial service agents do not have resources or
requirements to support defendants, and are instead using risk
classifications to promote harsh money bail decisions against defendants
from poor, highly-policed neighborhoods. Todd Oppenheim, Clarence Barnham’s public
defender, says in his experience pretrial agents mostly interpret
high-risk scores to mean people are dangerous and need to be given high
bail amounts to keep them in jail. “Pretrial never finds these services
like we sometimes do for our clients,” says Oppenheim. “Sometimes, when
pretrial is late, I’ll make a sarcastic comment to the judge and say,
‘We know they are going to ask for a bail increase, so can we just go
ahead and make our arguments already?’. Zina Makar, co-director of the Pretrial Justice Clinic at the University of Baltimore School of Law, also argues that the courts’ continuing practice of setting inaccessible bail amounts for poor defendants
suggests the tool is not an effective means of pushing for the release
of defendants based on their flight or public safety risk. “There’s
no rational relationship between one’s ability to make bail and one’s
threat to public safety,” says Makar. “If there is continued reliance on
money bail without regard to the defendant’s ability to pay, any
benefits a risk assessment tool may have cannot be optimized while
operating in an arbitrary system.” If such experiences are
not anomalous, pretrial services’ recommendations, based on these risk
scores, could be further intensifying racial disparities already present in the Baltimore bail system. Black residents in Baltimore, for example,
would seem to be far more likely to receive high risk scores under this
risk assessment algorithm, which takes into account number of arrests
(not convictions), earliest age of arrest, and drug arrests. According
to city arrest data
over January 2013 to December 2016, black residents accounted for 81.5
percent of all arrests (107,319 of 131,543 arrests), despite making up
63.7 percent of the population according to Census estimates.
Of black arrests in this period, 36.2 percent were of individuals
twenty-five years or younger. Of white arrests, only 21.3 percent were
of individuals twenty-five years or younger. According to city drug arrest data
from January 2013 to November 2016, black residents accounted for 84.6
percent of all controlled dangerous substance and narcotics arrests. Geographic data from Baltimore drug arrests
shows how drug policing is concentrated in black neighborhoods. ........As long as the relationship between risk scores, bail
recommendations, and bail decisions remains opaque, it’s difficult to
definitively say whether the implementation of Baltimore’s risk
assessment tool is helping defendants get out or further justifying the
jailing of many more. What little evidence is available on pretrial
services’ institutional capacities and courts’ bail setting records
suggest the non-incarceration route is often passed by. Which route is taken can have major
consequences."
The entire story can be found at:
The entire story can be found at:
http://www.citylab.com/crime/2016/12/justice-by-algorithm/505514/
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/
