by Steve Horn

Jefferson County, the most populous county in Alabama, reached a Resolution Agreement on April 6 with the U.S. Department of Justice and the group Equal Justice Under Law in response to a complaint brought by the group alleging that the County court system’s bail policy violated Title VI of the Civil Rights Act.

The Agreement mandates that the County will do “risk-based assessments and pretrial release alternatives, acting as substitutes for traditional bail bond requirements in determining which defendants are released prior to trial and to establish a fully-funded pretrial services agency for Jefferson County,” explains Equal Justice Under Law’s press release announcing the striking of the deal.

The deal comes in the aftermath of an administrative complaint filed by Equal Justice Under Law against the Tenth Judicial Circuit of Alabama on February 19, 2016 through the U.S. Department of Justice’s Division of Civil Rights.

Virginia Pretrial Risk Assessment

The Resolution Agreement directs Alabama’s Tenth Judicial Circuit to utilize the Virginia Pretrial Risk Assessment Instrument (“VPRAI”) to make decisions on bail and the expenses relating to posting bail, as opposed to the system in Alabama, which Equal Justice Under Law alleged was discriminatory in its results from a racial perspective and arbitrary in its utilization. Many counties nationwide now use the VPRAI as a template, a multi-question survey about a person who may or may not face pretrial detention, as a means to comply with the Eighth Amendment guarantee in the U.S. Constitution. That Amendment reads that “Excessive bail shall not be required, nor excessive fines imposed.”

Risk factors identified as part of VPRAI include pending charges, outstanding warrants, broader criminal history, multiple failure-to- appear convictions, history of drug abuse, and other factors. Depending on the factors laid out in that assessment, a pretrial officer will then recommend to a judge whether pretrial jail pending bond is in the cards for that defendant, supervised release and conditions of that supervision, or just a clean release from supervision until trial.

Virginia’s Department of Criminal Justice Services came up with this criteria based on a 2009 report published by the U.S. Department of Justice (“DOJ”) titled, “Pretrial Risk Assessment in the Federal Court: For the Purpose of Expanding the Use of Alternatives to Detention.”

“The results of this study should be utilized to develop a standardized empirically-based risk assessment instrument,” reads the 2009 DOJ report. “The use of a standardized instrument will assist in reducing the disparity in risk assessment practices and provide a foundation for evidence-based practices relating to release and detention recommendations and the administration of the alternatives to detention program.”

Do Risk Assessments Work?

The Resolution Agreement gives the Tenth Judicial Circuit two years to implement the program and analyze if it is working as an accurate risk assessment tool, coupled with it being one that does not discriminate by race or national origin of the defendant. Others, though, have already studied whether pretrial risk assessments work. That includes the Maryland-based Pretrial Justice Institute.

The key, says the Institute, is that it should not be used as a catch-all panacea and should “inform—not replace—the court’s discretionary decision making.” The Institute says it should constantly be reassessed too, to ensure it is achieving the results it desires.  

“Pretrial risk assessment instruments should NOT be used to automatically detain or to predict likelihood of guilt,” reads a primer on the Pretrial Justice Institute’s website. “No tool predicts how an individual person will behave; they show only how that person compares to others who are similarly situated and provide evidence of how those others behaved in the past.”

The Laura and John Arnold Foundation has also come up with its own assessment, which it has pitched as an upgrade to the VPRAI, known as the Public Risk Assessment. It does not require an interview of a defendant, thus ruling out the defendant’s address and place of employment. But it, and competitors, such as one created by the company Northpointe, have come under some criticism for how they weigh the factors they evaluate, as well as which factors they decide to weigh and which they do not.

“There is a very real danger that these tools and the appeal of ‘objective risk scores’ will silently codify racial disparities in bail determinations under a veneer of scientific rigor,” Scott Levy, director of the Fundamental Fairness Project for the Bronx Defenders, a legal aid organization for indigent defendants, told the American Bar Association Journal in March 2017. “It is essential that appropriate oversight and transparency mechanisms are in place.”

Sonja Starr, a professor at the University of Michigan Law School, concluded that risk assessment scores often end up leading to the “scientific rationalization of discrimination,” which if so, could lead Alabama’s Tenth Judicial Circuit back to square one. Starr, in a 2014 paper, called these risk assessments “an explicit embrace of otherwise-condemned discrimination, sanitized by scientific language.”

‘Glad to See’

Despite the potential pitfalls of relying on a risk assessment test, in response to the news about the Resolution Agreement being signed, Phil Telfeyan—executive director of Equal Justice Under Law—expressed his organization’s optimistic stance on the matter.

“We’re glad to see Jefferson County take an important step toward eliminating the inequality that plagues our pretrial justice system, and we hope the Department of Justice and counties across the country continue to make similar changes to ensure equality and fairness for indigent individuals and people of color in our criminal justice system,” Telfeyan said in a press release.

The proof, as the Harvard Law Review recently put it in an in-depth 22-page article on the history and policy debates surrounding bail reform and risk assessment, will be in the pudding in Alabama.

“Without adequate safeguards in place, some jurisdictions may adopt risk assessment tools only to conceal and preserve our current system’s inequality and cruelty,” the article reads. “Committing to a fixed public safety threshold, entrenching the evidence-based processes from outside interference, and tempering the misaligned incentives of judges and prosecutors are all indications that a jurisdiction can work toward a more equal, less punitive pretrial system.” 

Sources: ojp.gov, equaljusticeunderlaw.org, pacenterofexcellence.pitt.edu/documents/VPRAI_Manual.pdf, web.archive.org/web/20091222051907, luminosity-solutions.com, pretrial.org, arnoldfoundation.org, propublica.org, apnews.com, abajournal.com, repository.law.umich.edu, harvardlawreview.org

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