A groundbreaking law eliminates the controversial practice, but activists fear biases in the new system could expand pre-trial incarceration
Amber-Rose Howard nearly lost everything when she was thrown in jail as a teenager.
The California high schooler was a straight-A student who had offers from more than a dozen universities when she was arrested for a serious charge in 2004. After she spent two weeks behind bars, her family raised money for bail, and she slowly got her life back on track. While her case, a first-time offense, moved through the courts, she finished her classes and enrolled in college.
Under a new California law passed last week, however, the same arrest would have played out differently.Thats because an algorithm would have determined her fate and probably imprisoned her indefinitely.
California made international headlines after it became the first US state to fully eliminate cash bail, abolishing the practice that has long allowed wealthy criminal defendants to buy their freedom pre-trial while the poor languish in jail for minor charges. The legislation was celebrated by liberals for ending a cruel and unconstitutional system, but some activist groups that originally supported the bill ultimately urged governor Jerry Brown not to sign it.
The law replaces the cash bail system with risk assessment tools in which an algorithm would weigh factors about a person to help determine whether they should be released. Critics say it gives local authorities wide discretion to decide what is considered high risk, makes it easy for prosecutors and judges to keep people in jail, and expands the use of technology that could intensify racial biases.
Some fear it would enable an increase in pre-trial incarceration.
This will be totally devastating, said Howard, a 32-year-old organizer who said she supported the end of the bail system, but opposed the legislation. These risk assessment tools are likely going to classify our people as a risk Were all in a lot of danger.
There is bipartisan agreement that cash bail is a fundamentally flawed model that has fueled mass incarceration and created two tiers of justice forcing low-income defendants to spend months or longer behind bars without a conviction while losing their jobs, homes and families. Theyre often pressured into guilty pleas.
There is little consensus, however, about the best replacement. The California law broadly paves the way for preventive detention, which critics say encourages pre-trial detention as a default in a number of scenarios and gives courts far-reaching authority to determine someone is a public safety threat and should be jailed.
This makes it your burden from jail to prove that youre entitled to freedom, a fundamental constitutional right, said Chesa Boudin, a deputy public defender in San Francisco.
The assemblyman Rob Bonta, co-author of the legislation, said in an interview that critics were misinterpreting the legislation and cited estimates that 120,000 more people would be released per year under the new model: The whole idea of this bill is to make sure people arent detained unnecessarily.
The law also calls for an assessment algorithm to create an individual risk score that supposedly reveals the likelihood of re-arrest or failure to appear in court if released. Software would in effect compare the individual with people with similar profiles, which means using data from a criminal justice system that has documented discrimination at every step including racial biases in police stops, searches and arrests.
The most sophisticated algorithm would still replicate those biases, said Natasha Minsker of the ACLU, which revoked its support of the bill. At worst, its going to amplify those biases.
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