Glen J. Dalakian II has posted Open the Jail Cell Doors, HAL: A Guarded Embrace of Pretrial Risk Assessment Instruments (87 Fordham L. Rev., Forthcoming) on SSRN.
Here is the abstract:
In recent years, criminal justice reformers have focused their attention on pretrial detention as a uniquely egregious and solvable contributor to modern mass incarceration. While bail reform can take many forms, one of the most pioneering and controversial techniques is the adoption of actuarial models to inform bail decisions. These models are designed to supplement or replace the unpredictable and discriminatory status quo of judicial discretion when setting bail. This Note argues that policymakers should experiment with risk assessment instruments as part of their bail reform efforts, but only if proper safeguards are in place.
Concerns for protecting constitutional rights, mitigating racial disparities, and avoiding the drawbacks of machine learning are key challenges for reformers. Absent proper precautions, risk assessment instruments can reinforce modern disparities rather than alleviate them. Drawing from a case study of New Jersey’s recent bail reform program, this Note examines the efficacy, impact, and pitfalls of risk assessment instrument adoption. Finally, this Note offers a broad framework for policymakers seeking to thoughtfully experiment with risk assessment instruments in their own jurisdictions.