America’s pretrial justice system is broken, and violates one of the bedrock principles of the justice system: innocent until proven guilty. But people are regularly incarcerated before trial, before the state has proven them guilty of any crime, just because they can not make bail. Obviously, monetary bail systems are unjust and discriminate against people who are poor and people of color. The overwhelming majority of accused people should be free to go home to their families until their day in court. When a person is held in jail, even for a short period, they often face severe consequences – job and housing loss, separation from loved ones, and exposure to new risks, such as inadequate medical care and sexual assault.
There is a growing movement to #EndMoneyBail, but unfortunately, some jurisdictions are adopting pretrial risk assessment tools as an alternative. This is a mistake. Risk assessment tools, which are generally proprietary and based on secret algorithms, are not objective, not transparent, rely on stereotyping and are inherently prejudiced, and are based on and perpetuate racial bias and discrimination (read more here). In addition, they fail to provide the individualized determination that our Constitution – and our conscience – require when an individual’s liberty is at stake.
Policymakers can and should end the use of money bail without using “risk assessment” tools and should let far more people go home to their families and communities while they await their day in court. To the extent that these tools are in use, policymakers should adopt policies that mitigate the harm they could be causing to people and communities.
Defending Rights and Dissent has joined over 100 civil liberties and civil rights organizations in publishing a statement of concern about the use of pretrial risk assessment tools. Because these tools are already being used in some jurisdictions, the statement includes 6 principles jurisdictions should adopt to govern their use.
We believe that jurisdictions should work to end secured money bail and decarcerate most accused people pretrial, without the use of “risk assessment” instruments.
The extraordinary measure of pretrial detention should be treated as a last resort and should only be imposed upon an accused person after they’ve received a thorough, adversarial hearing that observes rigorous procedural safeguards respecting individual rights, liberties, and the presumption of innocence.
In light of the concerns raised in this document, we urge jurisdictions to reconsider their use of risk assessment tools. Pretrial “risk assessment” instruments – although they may seem objective or neutral – threaten to further intensify unwarranted discrepancies in the justice system and to provide a misleading and undeserved imprimatur of impartiality for an institution that desperately needs fundamental change.
Where these tools are used, in order to reduce the harm they can cause we urge the following:
Pretrial risk assessment instruments must be designed and implemented in ways that reduce and ultimately eliminate unwarranted racial disparities across the criminal justice system. Those engaged in the design, implementation, or use of risk assessment instruments should also test ways to reduce the racial disparities that result from using historical criminal justice data, which may reflect a pattern of bias or unfairness.
Pretrial risk assessment instruments must be developed with community input, revalidated regularly by independent data scientists with that input in mind, and subjected to regular, meaningful oversight by the community. The particular pretrial risk assessment instrument chosen should be trained by, or at least cross-checked with, local data and should be evaluated for decarceral and anti-racist results on a regular basis by the local community, including people impacted by harm and violence, and people impacted by mass incarceration, and their advocates.
Pretrial risk assessment instruments must never recommend detention; instead, when a tool does not recommend immediate release, it must recommend a pretrial release hearing that observes rigorous procedural safeguards. Such tools must only be used to significantly increase rates of pretrial release and, where possible, to ascertain and meet the needs of accused persons before trial, in combination with individualized assessments of those persons. Risk assessment instruments must automatically cause or affirmatively recommend release on recognizance in most cases, because the U.S. Constitution guarantees a presumption of innocence for persons accused of crimes and a strong presumption of release pre-trial.
Neither pretrial detention nor conditions of supervision should ever be imposed, except through an individualized, adversarial hearing. The hearing must be held promptly to determine whether the accused person presents a substantial and identifiable risk of flight or (in places where such an inquiry is required by law) specific, credible danger to specifically identified individuals in the community. The prosecution must be required to demonstrate these specific circumstances, and the court must find sufficient facts to establish at least clear and convincing evidence of a substantial and identifiable risk of flight or significant danger to the alleged victim (or to others where required by law) before the exceptional step of detention of a presumptively innocent person, or other onerous supervisory conditions can be imposed. All conditions short of detention must be the least restrictive necessary to reasonably achieve the government’s interests of mitigating risks of intentional flight or of a specifically identified, credible danger to others. Any person detained pretrial must have a right to expedited appellate review of the detention decision.
Pretrial risk assessment instruments must communicate the likelihood of success upon release in clear, concrete terms. In accordance with basic concepts of fairness, the presumption of innocence, and due process, pretrial risk assessment instruments must frame their predictions in terms of success upon release, not failure. Further, such tools should only predict events during the length of the trial or case – not after the resolution of the open case.
Pretrial risk assessment instruments must be transparent, independently validated, and open to challenge by an accused person’s counsel. At minimum, the public, the accused person, and the accused person’s counsel must all be given a meaningful opportunity to inspect how a pretrial risk assessment instrument works. The accused person’s counsel must also be given an opportunity to inspect the specific inputs that were used to calculate their client’s particular categorization or risk score, along with an opportunity to challenge any part – including non-neutral value judgments and data that reflects institutional racism and classism – of that calculation.
- African American Ministers In Action
- Alternate ROOTS
- American-Arab Anti-Discrimination Committee
- American Civil Liberties Union
- Amistad Law Project
- Arab American Institute
- Asian Pacific American Labor Alliance
- Bend the Arc Jewish Action
- Black Alliance for Just Immigration
- Black Lives Matters Philadelphia
- The Bronx Freedom Fund
- Brooklyn Community Bail Fund
- The Center for Carceral Communities
- Center for Democracy & Technology
- The Center for Media Justice
- Center for Popular Democracy
- Center on Race, Inequality, and the Law at NYU Law
- Chicago Community Bond Fund
- Civil Rights Corps
- College and Community Fellowship
- Color Of Change
- Colorado Freedom Fund
- Cville Immigrant Bond Fund
- Data & Society
- Dauphin County Bail Fund
- Decarcerate Tompkins County
- Defender Association of Philadelphia
- Defending Rights & Dissent
- Denver Justice Project
- Drug Policy Alliance
- Eastern Iowa Community Bond Project
- Electronic Frontier Foundation
- Ella Baker Center for Human Rights
- Entre Hermanos
- Essie Justice Group
- Families for Justice as Healing
- Fight for the Future
- Free Press
- Global Justice Institute
- Government Information Watch
- The Greenlining Institute
- Helping Educate to Advance the Rights of Deaf Communities (HEARD)
- Humanizing AI in Law Research Group, MIT
- Immigrant Family Defense Fund
- Impact Fund
- Impact Justice
- The Institute of the Black World 21st Century
- Jewish Council for Public Affairs
- Justice Strategies
- Kent County (Michigan) Immigrant Bond Relief Fund
- LatinoJustice PRLDEF
- The Leadership Conference Education Fund
- The Leadership Conference on Civil and Human Rights
- Local Progress
- Madison County Bail Fund Inc.
- Massachusetts Bail Fund
- The Mass Liberation Campaign
- Media Alliance
- Media Mobilizing Project
- Minnesota Freedom Fund
- Movement Voter Project
- NAACP Legal Defense and Educational Fund, Inc.
- National Action Network
- National Association of Social Workers
- National Bail Out
- National Center for Lesbian Rights
- The National Council for Incarcerated and Formerly Incarcerated Women and Girls
- National Council of Churches
- National Employment Law Project
- National Hispanic Media Coalition
- National Law Center on Homelessness & Poverty
- NETWORK Lobby for Catholic Social Justice
- New America – Public Interest Technology
- New America’s Open Technology Institute
- Northwest Community Bail Fund
- Oakland Privacy
- One Pennsylvania
- Open MIC (Open Media and Information Companies Initiative)
- OVEC-Ohio Valley Environmental Coalition
- People’s Action | Mass Liberation Project
- People’s Paper Co-op
- The People’s Press Project
- Philadelphia Bail Fund
- Philadelphia Community Bail Fund
- Philadelphia Red Umbrella Alliance
- Portland Freedom Fund
- POWER Interfaith
- Prison Policy Initiative
- Progressive Leadership Alliance of Nevada
- Project SAFE
- Public Defender Association
- Public Knowledge
- Reclaim Philadelphia
- Reentry Think Tank
- Richmond Community Bail Fund
- Silicon Valley De-Bug
- Southern Center for Human Rights
- Southerners On New Ground
- Southwest Workers Union
- Texas Organizing Project
- Tucson Second Chance Community Bail Fund
- United Church of Christ, OC Inc.
- Urbana-Champaign Independent Media Center
- Voice of the Experienced
- Washington Lawyers’ Committee for Civil Rights and Urban Affairs
- Washington Square Legal Services Bail Fund
- Young Women’s Freedom Center
- 215 People’s Alliance