Here’s Our Stance on Pretrial Justice System Reform

By Alicia Smith

Right now in the United States, hundreds of immigrant children are being held against their will in prisons, separated from their families. The highest court in the land could be overtaken by an extremist with a narrow view of our rights and liberties. Millions of people in America remain trapped in some way by an unjust justice system. We can’t fix each of these injustices overnight, but there’s at least one action that could be the beginning of meaningful change: bail reform.

Our nation’s pretrial justice system is systematically biased against, and disproportionately impacts, low-income people and people of color and allows for frequent violations of the Constitution. Too many people are jailed before they even go to trial, simply because they can’t afford to pay monetary bail. On any given day in America, nearly half a million people are in jail awaiting their day in court.

Recently, policymakers and advocates at the state and local level have sought to reform their pretrial justice systems. Many jurisdictions are embracing pretrial risk assessment instruments/algorithmic based decisionmaking tools – statistical tools that use historical data to forecast which defendants can safely be released – as a cornerstone of these changes. These tools are often presented as a transparent and equitable alternative to current systems of secured money bail in pretrial detention decisionmaking. But in reality, they could end up exacerbating the racial disparities in the system.

Along with more than 100 national organizations (including our sister organization, The Leadership Conference on Civil and Human Rights), we recently held a press call to discuss concerns regarding these tools. In response, the American Bail Coalition released a statement completely misinterpreting and undermining our views and perspective on pretrial justice system reform. To the bail bonds industry, if it wasn’t transparent before, here it is again – loud and clear:

When it comes to monetary bail, we take a position of abolition. Just because we see the obvious flaws with risk assessment tools doesn’t mean that in exchange we support maintaining the status quo (i.e. money bail). To achieve true and effective change, we believe that pretrial justice reform must do the following: significantly reduce arrests, end money bail, severely restrict pretrial detention, implement robust due process protections, preserve the presumption of innocence, and eliminate racial inequity – and, all of these things can and should be undertaken without the use of risk assessment tools.

The principles in our original statement aim to center community voices that are urging jurisdictions to end money bail and decarcerate most accused people without the use of “risk assessment.” They are also designed to inform decisionmakers about the consequences of these tools for civil and human rights and provide local communities with more resources and power as they advocate for pretrial systems that are just, fair, and appropriate for their families and communities. The six principles are as follows:

• Pretrial risk assessment instruments must be designed and implemented in ways that reduce and ultimately eliminate unwarranted racial disparities across the criminal justice system.
• 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.
• Neither pretrial detention nor conditions of supervision should ever be imposed except through an individualized, adversarial hearing.
• Pretrial risk assessment instruments must be transparent, independently validated, and open to challenge by an accused person’s counsel.
• Pretrial risk assessment instruments must communicate the likelihood of success upon release in clear, concrete terms.
• 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

We will not be fooled into trading one injustice for another. Our justice system is in desperate need of a dramatic makeover – and a critical step in that process is bail reform.