Failure No. 4- Risk Assessments: No Longer Worth the Risk

Failure No. 4:  Risk Assessments are No Longer Worth the Risk

The application of a Risk Assessment Tool into the pretrial criminal justice system was first advocated by reform activists.  It was intended to be an automated tool that would replace the need for using the private bail industry.  Also, some would say that the tool was intended to take away judicial discretion to add more uniformity to the pretrial release process across jurisdictions.  It was intended the tool would tell the court who should be released, who should be detained and who was on the bubble of release or detention.  Further, as the largest technology companies in the world have now demonstrated, the risk assessment tool was rushed and never properly studied before its release.

Now how many years later, all of the initial advocates who supported the use of these tools no longer support the use of risk assessment tools.  The reason for this is because numerous studies have been released which document that risk assessment tools use an algorithm that makes predictions on what groups do using, in part, the racial background of the defendant.  Additionally, the tools are wrong much of the time.

In many places, where the risk assessment tool is still pushed, it is no longer pushed as the decision maker, but as one more piece of additional information for the judge to rely upon.  Therefore, these tools are only providing a small portion of information to courts even where they are being sought.  

In these situations, it would seem that it would no longer be worth the “risk” of using these tools.  Why?  We live in a day where plaintiff activist groups are filing suits trying to find any vulnerability and then hold a county hostage in federal court until they agree to a settlement that goes way beyond the requirements of the federal or state constitution or even Texas law.   In the last year, multiple studies have been published that conclude that risk assessment tools should not be a part of criminal justice reform efforts and that the tool has a racial element.  These studies would enable plaintiff groups to file suit alleging that the use of a risk assessment tool violates the equal protection clause of the state and federal constitutions.  Therefore, enacting criminal justice reform that included a risk assessment tool would end up doing the opposite of what was intended.  The inclusion of a risk assessment tool would open counties to the very litigation that the reform effort was trying to prevent.

Consequently, risk assessment tools are no longer worth the risk.  The benefit of these tools now is so small that the risk of litigation outweighs any benefit that a risk assessment tool may provide.  Thus, risk assessment tools  are no longer worth including it in any bail reform.

The Four Failures of Risk Assessments:

Failure No. 1:  Risk Assessments were Rushed to Use Without Proper Understanding

Failure No. 2:  Risk Assessments are Wrong Much of the Time

Failure No. 3:  Risk Assessments Set Defendants Up for Failure

Failure No. 4:  Risk Assessments are No Longer Worth The Risk