David Robinson / Danger Ahead: Risk Assessment and the Future of Bail Reform / 09.11.18

David Robinson (Upturn; visiting scientist at Cornell University), presenting “Danger Ahead: Risk Assessment and the Future of Bail Reform” on September 11, 2018 on the Cornell campus.

Abstract: In the last five years, lawmakers in all 50 states have made changes to their pretrial justice systems. Reform efforts aim to shrink jails by incarcerating fewer people, particularly poor, low-risk defendants and racial minorities. Many places are embracing pretrial risk assessment instruments — statistical tools that use historical data to forecast which defendants can safely be released — as a centerpiece of reform. But these instruments, as they are currently built and used, cannot safely be assumed to support reformist goals of reducing incarceration and addressing racial and poverty-based injustice. Existing scholarship and debate centers on how the instruments themselves may reinforce racial disparities, and on how their opaque algorithms may frustrate due process interests. In this talk, I will highlight three underlying challenges that have yet to receive the attention they require. First, today’s risk assessment tools make what I call “zombie predictions.” That is, predictive models trained on data from older bail regimes are blind to the risk-reducing benefits of recent bail reforms. Second the “decision-making frameworks” that mediate the court system’s use of risk estimates embody crucial moral judgments, yet currently escape appropriate public scrutiny. Third, in the long-term, tools risk giving an imprimatur of scientific objectivity to ill-defined concepts of “dangerousness,” may entrench the Supreme Court’s historically recent blessing of preventive detention for dangerousness, and could pave the way for an increase in preventive detention.