California’s new law, Senate Bill 10, signed by Gov. Jerry Brown last week, abolishes money bail but actually undermines genuine criminal justice reform. Because it depends on risk assessment tools that use opaque algorithms, the law may increase pretrial incarceration and even exacerbate racial and class biases in the current system.
The risk assessment tools purport to estimate the likelihood of a person getting re-arrested, or missing a court date. They draw on facts about that person — without considering context — to create a profile. Exactly what facts the tools take into account isn’t defined in the new law, but presumably they will include arrest records. The tools produce a score based on the past behavior of others with matching profiles.
Jailing someone because others with some similar characteristics have failed in the past is wrong, especially because this process will perpetuate discrimination in the criminal justice system. Police bias in stops, searches and arrests is well documented — so tools that use previous arrests to estimate the likelihood of re-arrest will assign higher risk to people of color and poor people.