New Jersey, of all places, is leading the nation in the elimination of bail. While bail bondsmen are screaming about how criminals will be released to rape your daughter at night, not that they have a financial horse in the race, and the Attorney General has tweaked the guidance a few times, it turns out that low-level defendants are being cut loose. So it’s working?
This may seem like an unusually technocratic approach to public defense. But it’s not so unusual anymore, at least not in New Jersey, where the state has recently undergone a holistic technological transformation of its arcane court system, all in the service of eliminating the use of bail statewide.
Jersey took the algorithm route, which predicted a defendant’s likelihood of returning to court or committing a new crime on a scale of 1 to 6. The purpose was to end the pre-trial incarceration of indigent defendants for the inability to pay bail.
In 2016, the Department of Justice, under President Obama, also issued a Dear Colleague letter to state and local courts around the country, advising them that courts “must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release.”
Since pre-trial incarceration was a huge factor in obtaining guilty pleas from innocent defendants, and often resulted in longer incarceration than a defendant could get after conviction, the problems were obvious and huge,
As it turned out, that described a large percentage of people who have spent time in New Jersey jails, according to one 2013 study by the New Jersey Drug Policy Alliance. The advocacy group found that some 75 percent of New Jersey’s jail population at any given moment was simply awaiting trial, and 40 percent of jailed people were there because they couldn’t afford $2,500 or less in bail. On average, people spent 10 months in jail before even getting to trial.
On the flip side, the system wasn’t viewed as perfect on the other end either.
Meanwhile, because New Jersey prohibited even the most violent criminals from being detained without bail, judges often had to set exorbitant bail amounts to keep violent offenders off the streets; sometimes, those people made bail anyway.
Mind you, whether someone is a “violent offender” is usually a determination to make after trial, a detail that Wired seems to miss in its recitation, as it presumes guilt. But ignorance aside, how are the algorithms working?
Just months in, the experiment has already made an impact. New Jersey saw a 19 percent reduction in its jail population overall between January 1 and May 31 of this year, with just eight people being held on bail throughout the entire state over that time period. Others are either being released with certain conditions or detained without bail.
That’s certainly a significant reduction, which means it’s all good? No. We’ve long been aware that the algorithms are kinda real, kinda malarkey.
Not all of these algorithms are created equal. One ProPublica investigation found that a tool called Compas, which was used in sentencing decisions, overwhelmingly rated black defendants higher risk than white defendants.
“Algorithms and predictive tools are only as good as the data that’s fed into them,” Ezekiel Edwards, director of the ACLU’s criminal law reform project, recently told WIRED. “Much of that data is created by man, and that data is infused with bias.”
You have a host of issues concealed behind the word “empiricism,” from the GIGO problem, since the information input is based on human assessment, to the tweaking problem.
“An effective risk assessment must be gender and race neutral,” says Judge Caposela, one of the PSA’s early evangelists in New Jersey. “The more risk factors you have, the less likely you’ll be able to eliminate gender and racial bias.”
In other words, the more empirical it is, the more difficult it becomes to screw with the science to match the religion of race and gender neutrality, meaning that there could be a ton of data available, which would then be subject to human intervention to align with neutral aspects, so they can keep the claim to empiricism while making it unscientific at the same time.
But there was the much sought after reduction in the numbers of people being held, so it can’t be all bad, right? Well, not quite. Before this push toward eliminating needless bail for the poor, bail was routinely imposed for the asking, based largely on the combination of some kid prosecutor deciding to ask for some silly amount, like $1000, that was high enough to preclude a poor defendant from getting out but served no legitimate purpose, and judges whose foremost guiding principle was to not be the guy who cut loose a defendant who later went out and raped and murdered a family of five.
In other words, there was a huge gap of people for whom bail was never appropriate or necessary, but was imposed anyway. Prosecutors asked. Judges acquiesced. Defendants stayed in jail. Lots of them, for no good reason. And the system ground away, SNAFU.
Had there been a rule imposed that anybody charged with an offense below a mid-level felony, or any defendant who would otherwise have gotten bail of $2500 or less, would be released without bail, chances are the outcome would be the same. There were that many defendants being needlessly held that even relatively arbitrary rules would have achieved the same good outcome. This isn’t because algorithms make the system so much better, but the system was so bad before that any change that released poor defendants without bail would have been a relief.
And the backlash to the Jersey system is the usual, that a defendant will be released who will go out and kill someone. Which, of course, happened.
This lack of transparency has become central to lawsuits surrounding the use of the PSA. Jules Black, the man accused of murdering Christian Rodgers, had been in and out of the New Jersey county jail system 28 times since 1994, according to the suit. His most recent arrest was for unlawful possession of a firearm. During a press conference about the case, Dog the Bounty Hunter questioned why a man with such a record would be released.
Even Judge Caposela acknowledges there’s some truth to that. The PSA takes what he describes as a “neutral view” of gun possession. Because it was trained on data from across the country, and because some states have far more lax gun regulations than New Jersey does, the PSA doesn’t consider mere gun possession as an outsized risk. It wasn’t until after the Rodgers murder that the state’s attorney general issued new guidance, directing New Jersey prosecutors to seek pretrial detention in any gun-related cases.
There are two concerns here, the first being that this is called empiricism but it’s really not. And even if it was, it’s not a guarantee that no released defendant will commit a crime, as people are still people. The inclination to demand perfection of an imperfect system, that was far more imperfect before, takes the eye off the ball. Should ten thousand people remain in pre-trial incarceration for fear that one might commit a crime if released?
Bad things are going to happen, and anyone who thought otherwise is insufferably naive. They happened before the change to the algorithm and they will happen again. But cutting 19% loose tells little about the efficacy of algorithms, given how carelessly bail had been imposed on poor, low-level offenders. The imposition of bail on the poor is a huge problem, but the Jersey experience is a long way from proving that algorithms are the answer.