California may replace cash bail with algorithms ? but some worry that will be less fair

Some have started campaigning against the California ballot measure, pitting them against former allies who see the bail reform plan as a golden opportunity to end a practice that criminalizes poverty — and putting them on the same side as the bail bond industry, which is also fighting the measure.The California debate reflects a nationwide reckoning over the use of algorithms as reformers’ “default” replacement for bail, said John Raphling, a senior researcher on criminal justice at Human Rights Watch, which opposes Proposition 25.“Over the past few years people have begun to understand what risk assessment tools are,” Raphling said. Another team of researchers argued that the tools did not reduce racial disparities among people jailed while waiting for trial, and may actually worsen the gaps.Those warnings are starting to have an impact.In January, the Ohio Supreme Court chose not to recommend risk assessment tools in a report on bail reform, reportedly swayed by arguments about racial bias from the ACLU.A month later, the Pretrial Justice Institute, a nonprofit that for years persuaded jurisdictions across the country to adopt the tools, reversed course and disavowed them, saying they were “derived from data reflecting structural racism and institutional inequity.”“The idea that people are inherently risky needs to change,” Meghan Guevara, an executive partner at the Pretrial Justice Institute, said. “The problem with risk assessment tools is that everyone is ranked as having some kind of risk.”Reform advocates who oppose algorithms favor alternatives that eliminate detention for most nonviolent offenses, help poor people argue for release and provide services, from transportation to mental health care, that make it easier for people to return to court.They lobbied for a law that went into effect this year in New York, which eliminates pretrial detention and cash bail in most misdemeanor and nonviolent felony cases without using a risk assessment tool.“New York is a model for how you take money bail mostly out of the equation,” Insha Rahman, vice president of advocacy and partnerships at the Vera Institute of Justice, said.The shift in thinking about risk assessment tools has had a dramatic effect in California.The tools were rising in popularity in December 2016, when Democratic state lawmakers introduced a bill that would end cash bail.