Bail reform

California May Replace Cash Bail With Algorithms — But Some Worry That Will Be Less Fair

A fight over replacing bail with "risk assessment tools" has split reform advocates. Some fear the change will worsen anti-Black discrimination

NBCUniversal Media, LLC

The movement to eradicate bail from America’s justice system will face a crucial test Nov. 3, when California voters will decide whether to end the centuries-old practice of trading money for freedom and replace it with algorithms that try to predict whether defendants deserve to be released before trial.

If the ballot measure known as Proposition 25 passes, California will follow dozens of counties, and several states, that have adopted “risk assessment tools” intended to bring more fairness to the pretrial justice system. Traditionally, that system has relied on the payment of cash or bonds to guarantee defendants will return to court — which keeps poor people locked up or in debt to bail bondsmen.

A victory on the referendum would come at a key moment for reform advocates, who are trying to harness public demands for change following the May 25 killing of George Floyd by Minneapolis police.

But the vote also comes at a time of rising skepticism about using mathematical formulas to determine whether someone is likely to return to court for trial or get arrested again. A growing number of researchers, computer scientists and civil rights advocates have warned that the algorithms — which use data about a person’s background and criminal history to assign a risk score — could worsen discrimination. Black people, for example, are arrested at higher rates than white people, which makes them more likely to get higher risk scores, which judges could cite to keep them locked up.

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