Bail Reform and Risk Assessment: The Cautionary Tale of Federal Sentencing
"Across the country, from New Jersey to Texas to California, bail reform
is being debated, implemented, and litigated at the state and local
levels. Lawmakers and the public are learning that cash bail is
excessive, discriminatory, and costly for taxpayers and communities.
With promises to replace judicial instincts with validated algorithms
and to reserve detention for high-risk defendants, risk assessment tools
have become a hallmark of contemporary pretrial reform. Risk assessment
tools have proliferated despite substantial criticisms that the tools
depend upon and reinforce racially biased data and that the tools’
accuracy is overblown or unknown. Part I of this Note examines
contemporary bail practices, recent reforms, and risk assessments’
promises and shortcomings. Part II discusses federal sentencing reform,
which originally sought a more empirical approach to criminal justice
but failed. Part III applies the lesson of sentencing reform to bail
reform today. Despite endorsing empirical tools, legislatures are prone
to interfering with the evidence that informs those tools or with the
tools themselves. Even after reforms, system actors retain misaligned
incentives to incarcerate too many people. Technocratic instruments like
risk assessments may obscure but cannot answer tough, fundamental
questions of system design. But recent pretrial reforms have shown early
signs of progress. If risk assessments are paired with adequate
safeguards, sustained reductions in incarceration and progress toward
equal treatment may be possible."
No comments:
Post a Comment