Bail Decisions Based on Algorithms

The New York Times has this interesting report on using algorithms to make bail determinations. From the article:

Setting bail is a difficult task for judges. They must try to foretell whether the defendant is likely to commit another crime, hurt someone or skip out on the next court date.
Now comes help in a distinctly modern form: an algorithm. 

After two years of testing, the formula, developed at a cost of $1.2 million by the Laura and John Arnold Foundation, is being rolled out to 21 more jurisdictions, including states like Arizona and New Jersey and cities like Chicago and Pittsburgh, the foundation announced on Friday. The algorithm gives defendants two scores — one for their likelihood of committing a crime and one for their risk of failing to appear in court — and flags those with an elevated risk of violence. 

. . . 

The Arnold assessment has been met with some skepticism because it does not take into account characteristics that judges and prosecutors normally consider relevant: the defendant’s employment status, community ties or history of drug and alcohol abuse. Instead, after crunching data on one and a half million criminal cases, researchers found that fewer than 10 objective factors — basically age, the criminal record and previous failures to appear in court, with more recent offenses given greater weight — were the best predictors of a defendant’s behavior. Factoring in other considerations did not improve accuracy.

Bail determinations are an important, but often overlooked step of the trial process. If somebody is required to post bail, that person may be taken into custody if he or she cannot afford it. The result is that this person will face higher pressure to go to trial quickly or reach a hasty resolution of their case in order to get out of custody. Charlie Gerstein notes the pressure that a bail determination can induce on plea bargain in his article, Plea Bargaining and the Right to Counsel at Bail Determination.

Given the substantial impact that a bail determination may have on the pretrial and trial process, I am happy to see steps being taken to make decisions on bail more accurate. The article notes that in a jurisdiction where the Arnold assessment has been adopted, jail populations have decreased due to fewer instances of requiring bail, but crime has not increased.

It will be interesting to see if more jurisdictions adopt and apply formulas in deciding to require bail. If more jurisdictions turn to algorithms, hopefully the positive results reported by the Times will be reflected on a wider scale.