Liberty at Risk: Pre-trial Risk Assessment Tools in the U.S.

PRETRIAL RISK ASSESSMENTS

Risk Assessment Tools are used in almost every state in the U.S. – and many use them pre-trial. Pretrial Risk Assessment tools are designed to attempt to predict future behavior by defendants and incarcerated persons, and quantify that risk.

Significant empirical research has shown disparate impacts of Risk Assessment Tools on criminal justice outcomes based on the race, ethnicity, and age of the accused. The concerns with the use of these tools don’t stop there. 

“RECIDIVISM RISK” AND “FLIGHT RISK”

Most Pretrial Risk Assessment Tools try to estimate “recidivism risk” and “flight risk”:

• Recidivism risk tries to estimate how likely a person is to commit a crime or be arrested.
• Flight risk refers to an estimate of how likely a person is to not show up at trial.

In calculating these figures, an employee inputs factors about a person that the developer set forth based on a series of statistical analyses of historical criminal offense data, combined with inferences and assumptions.

RISK ASSESSMENTS AND BAIL

Risk Assessment tools are used widely and hold immense power over a person’s liberty. The products of some tools help decide if someone will be detained or released, and how expensive bail will be.

The appeal of these tools is that they could help increase the efficiency of the overburdened bail system – and they often are introduced in the context of bail reform. In reality, most of these tools have not led to significant decreases in Pretrial incarceration.

Beyond documented disparate impacts, records have shown that there is inconsistent training, common software issues, and a serious lack of transparency.

WARNINGS ABOUT RISK ASSESSMENTS

Earlier this year, some of the organizations that developed and most strongly promoted adoption of these tools began to caution against their use in the pretrial context.

The Pretrial Justice Institute, who had supported the rapid adoption of these tools in the last 10 years, wrote this February that “We now see that pretrial risk assessment tools, designed to predict an individual’s appearance in court without a new arrest, can no longer be a part of our solution for building equitable pretrial justice systems.”

Days later, an organization funded by the developers of the Public Safety Assessment, a widely used Pretrial Risk Assessment tool, wrote that “implementing an assessment alone cannot and will not result in the pretrial justice goals we seek to achieve.”