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February 10, 2018

"Bail Reform and Risk Assessment: The Cautionary Tale of Federal Sentencing"

The title of this post is the title of this new Note appearing in the latest issue of the Harvard Law Review.  Here is how it starts:

Across the country, from New Jersey to Texas to California, bail reform is being debated, implemented, and litigated at the state and local levels.  Lawmakers and the public are learning that cash bail is excessive, discriminatory, and costly for taxpayers and communities.  With promises to replace judicial instincts with validated algorithms and to reserve detention for high-risk defendants, risk assessment tools have become a hallmark of contemporary pretrial reform.  Risk assessment tools have proliferated despite substantial criticisms that the tools depend upon and reinforce racially biased data and that the tools’ accuracy is overblown or unknown.  Part I of this Note examines contemporary bail practices, recent reforms, and risk assessments’ promises and shortcomings. Part II discusses federal sentencing reform, which originally sought a more empirical approach to criminal justice but failed.  Part III applies the lesson of sentencing reform to bail reform today.  Despite endorsing empirical tools, legislatures are prone to interfering with the evidence that informs those tools or with the tools themselves.  Even after reforms, system actors retain misaligned incentives to incarcerate too many people.  Technocratic instruments like risk assessments may obscure but cannot answer tough, fundamental questions of system design. But recent pretrial reforms have shown early signs of progress. If risk assessments are paired with adequate safeguards, sustained reductions in incarceration and progress toward equal treatment may be possible.

February 10, 2018 at 12:39 PM | Permalink

Comments

Did someone say, Harvard? Dismissed. Just more pro-criminal bs from big government rent seekers.

Posted by: David Behar | Feb 11, 2018 6:20:03 AM

TL;DR version.

(1) Risk assessments stink.
(2) They aren't going to go away anything soon because the public loves the magic of math.
(3) Better stop worrying and learn to love them.
(4) Repeat after me: hope, change, hope, change

Posted by: Selfie Man | Feb 11, 2018 12:38:33 PM

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