Thursday, March 8, 2018

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."

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