LAW & PUBLIC SAFETY

What goes into the algorithm behind New Jersey’s bail reform?

BY Michael Hill, Correspondent |

There are fewer men and women in jail are awaiting trial and crime is down for the first half of the year. Advocates say those are signs that New Jersey bail reform, that started Jan. 1, is working.

“The initial data that we’ve seen makes me very hopeful that it is improving community safety, improving fairness and ensuring that voters aren’t overpaying for jail we don’t need to be,” said Vice President of Criminal Justice for the Laura and John Arnold Foundation Matt Alsdorf.  The foundation is a Texas nonprofit helping some 40 jurisdictions with bail reform.

“New Jersey is engaged in, I think, what is the most substantial reform of its pre-trial system, of its bail system, of any of the jurisdictions that we’ve worked with across the country,” he said.

New Jersey and the other states and counties rely on the Arnold Foundation’s Public Safety Assessment, or PSA. It’s an algorithm, or recipe, of nine factors that researchers came up with after reviewing some 750,000 pre-trial cases. The factors include age, nature of the charge, convictions, failure to appear and incarceration. The PSA questionnaire aims to predict whether someone charged with a crime will show up for court or commit a crime if released before trial, instead of relying on money for bail to get out.

“It doesn’t include things like neighborhood, or education level, or family status or anything like that,” said Alsdorf.

Those factors have been accused of leading to racial bias. Alsdorf says that when they were included, they did not make the tool any more predictive.

The Arnold Foundation came up with the PSA tool, but says it is in no way meant to replace the discretion of a judge.

“They can take into account any factors that they’re aware of outside of the risk assessment. So the objective of the risk assessment is in no way to determine what happens in the outcome of the case,” said Alsdorf.

When asked if this is a perfect system, Alsdorf replied, “No, of course not. Unfortunately, there is no way to create a perfect system.”

This summer, June Rodgers became the second person to sue New Jersey and the Arnold Foundation over bail reform. Rodgers blames reform for freeing a convict who days later was accused of murdering her son.

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“We’ve got a product that when you run people through it will tell you whether or not they’re dangerous. This product failed,” said President and CEO of Nexus Services Mike Donovan.

“I in no way minimize the tragedy of incidents that have happened in New Jersey, but I think it’s important to realize that those types of incidents happened in prior systems as well,” said Alsdorf.

How algorithmic predictions are used depends solely on humans. Rutgers University Law Professor Ellen Goodman says she’s curious as to how often New Jersey judges disregard or override the PSA, numbers New Jersey is not compiling.

“We don’t know how often that happens, so that’s data that local government may be collecting, maybe they’re not collecting. We think they should collect it, and we think that should be released to the public,” said Goodman.

Goodman co-founded the Rutgers Institute for Information Policy and Law. She welcomes the use of algorithms to peer into a judge’s decision making.

“In a way we now have the opportunity to get into the black box that we never had access to before and understand whether there are unconscious or systemic   bias, or other problems with fairness or errors, so that’s an advance,” she said.

The Arnold Foundation recognizes bail reform is drying up the bail bonds industry, which looms large in the two lawsuits.

“I think it’s a real shame that these special interests are trying to cherry pick these examples and use them to advance their own financial interests,” said Alsdorf.

As the suits move forward, the Arnold Foundation says so does the momentum for bail reform.