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Public Safety Assessment Algorithms: The Search For The New Minority Report

Currently, the United States is undergoing historic criminal justice reform. Cash bail is one component being reviewed and eradicated, generating change in a system that has been intact not just for decades, but centuries.

Public Safety Algorithms are the release of an accused person awaiting trial, often on the condition that the money or assets guarantees a court appearance. Bail is part of a “punitive” or “punishment” philosophy of reform.

BAIL Origin

Middle English: from Old French, literally ‘custody, jurisdiction,’ from Old French bailler ‘take charge of,’ from Latin bajulare ‘bear a burden.’

Bail is pretty simple. If an individual gets busted for a crime, a dollar amount is set by a judge after arrest while awaiting trial. Usually 10% unless it is an extreme or violent situation. More complicated however are the different types of bail which include: surety bond, recognizance, unsecured bail, percentage bail, citation release, property bond,immigration bond, cash, pretrial, combinations, conditions, protective order. Bail bondsmen are a 24/7 cash lucrative competitive business with similar rogue allure to bounty hunting. Though new careers may be on the horizon for one of the oldest professions as bail bondsmen potentially become obsolete with the implementation of computer generated algorithms determining two tiers of probability and assigning a numeric assessment to sentencing.

Criminal justice reform is currently testing risk assessment algorithms as an alternative to the old cash bail system which has come to be considered a conflict to the protections offered by the sixth and eighth amendments of the constitution with respect to prohibition against excessive bail and the right to demand bail if it is an option. Bail was not considered a constitutional right until the “Bail Reform Act” (BRA) of 1966 which forced expediency in sentencing based on factors of family and community ties, employment history, and past record.

In 1984 Congress implemented the “Sentencing Reform Act” (SRA) considered at the time to counter the 1966 BRA new bail law based on factors of flight risk leading into ‘Evidence Based Practices” (EBP) where instead of history and personality characteristics, sentencing decisions became based on scientific and quantitative methods sometimes referred to as “criminogenic needs”.

Since 2016 hot topic in the news has been “Predictive Algorithms” and “RNR” or “Risk - Needs - Resperosity” and a new era of Risk Assessment Software discussed in every major print and cyber media view including - though by no means limited to - ABA Journal, NOLO, NJTV, NPR, NY Times, and VICE. In a detailed collaborative article shared in the public domain by Harvard Law, the “use of risk assessments in sentencing” is explained with positive favor. Especially visible in New Jersey after a year long test of the new system the “public safety assessment” or “PSA” has been a funded project of the Laura and John Arnold Foundation, supported with funds from Mr. Arnold’s hedge fund management expertise and invested into criminal justice reform. Utilizing “predictive algorithms” to “reduce recidivism” focusing on what Richard E Redding describes as “particular offender characteristics and criminogenic needs” in what could be defined as an algorithmic similar to the concept of precogs in the 1956 Philip K. Dick short story, “The Minority Report” where crime is predetermined, and therefore prevented, keeping society safe from murder.

Though New Jersey is not the first state to test the PSA algorithms, the last twelve months have generated more media than any other previous effort. Is cash bail becoming obsolete? Though smaller and more ethnic neighborhoods have competitive store fronts advertising 24/7 services, it is clear the computerized solutions to socioeconomic and racial disparities is the wave the system is riding on. What will this mean to consensual working adults? Let us know your experience and perspective.

This [was] the first in a series of articles written specifically for SWOP Behind Bars (SBB) by a guest panel of authors on the history of cash bail, and the algorithms defining the future. Re/Print from 2018 by M. Dante for SBB.

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