A groundbreaking law eliminates the controversial practice, but activists fear biases in the new system could expand pre-trial incarceration

Amber-Rose Howard nearly lost everything when she was thrown in jail as a teenager.

The California high schooler was a straight-A student who had offers from more than a dozen universities when she was arrested for a serious charge in 2004. After she spent two weeks behind bars, her family raised money for bail, and she slowly got her life back on track. While her case, a first-time offense, moved through the courts, she finished her classes and enrolled in college.

Under a new California law passed last week, however, the same arrest would have played out differently. That’s because an algorithm would have determined her fate – and probably imprisoned her indefinitely.

California made international headlines after it became the first US state to fully eliminate cash bail, abolishing the practice that has long allowed wealthy criminal defendants to buy their freedom pre-trial while the poor languish in jail for minor charges. The legislation was celebrated by liberals for ending a cruel and unconstitutional system, but some activist groups that originally supported the bill ultimately urged governor Jerry Brown not to sign it.

We're all in a lot of danger Amber-Rose Howard

The law replaces the cash bail system with “risk assessment” tools in which an algorithm would weigh factors about a person to help determine whether they should be released. Critics say it gives local authorities wide discretion to decide what is considered “high risk”, makes it easy for prosecutors and judges to keep people in jail, and expands the use of technology that could intensify racial biases.

Some fear it would enable an increase in pre-trial incarceration.

“This will be totally devastating,” said Howard, a 32-year-old organizer who said she supported the end of the bail system, but opposed the legislation. “These risk assessment tools are likely going to classify our people as a risk … We’re all in a lot of danger.”

There is bipartisan agreement that cash bail is a fundamentally flawed model that has fueled mass incarceration and created two tiers of justice – forcing low-income defendants to spend months or longer behind bars without a conviction while losing their jobs, homes and families. They’re often pressured into guilty pleas.

There is little consensus, however, about the best replacement. The California law broadly paves the way for “preventive detention”, which critics say encourages pre-trial detention as a default in a number of scenarios and gives courts far-reaching authority to determine someone is a “public safety” threat and should be jailed.

Governor makes California first state to eliminate bail Read more

“This makes it your burden from jail to prove that you’re entitled to freedom, a fundamental constitutional right,” said Chesa Boudin, a deputy public defender in San Francisco.

The assemblyman Rob Bonta, co-author of the legislation, said in an interview that critics were misinterpreting the legislation and cited estimates that 120,000 more people would be released per year under the new model: “The whole idea of this bill is to make sure people aren’t detained unnecessarily.”

The law also calls for an assessment algorithm to create an individual “risk score” that supposedly reveals the likelihood of re-arrest or failure to appear in court if released. Software would in effect compare the individual with people with similar profiles, which means using data from a criminal justice system that has documented discrimination at every step – including racial biases in police stops, searches and arrests.

The most sophisticated algorithm would still “replicate” those biases, said Natasha Minsker of the ACLU, which revoked its support of the bill. “At worst, it’s going to amplify those biases.”

Facebook Twitter Pinterest Jayda Rasberry described her experience in jail: ‘I just felt like I didn’t matter, and my life was over.’ Photograph: Courtesy Jayda Rasberry

People with arrest records, who may live in communities of color that are over-policed, could be deemed “high risk” and jailed as a result.

“We are replacing money bail with an even more harmful system of profiling,” said Ivette Alé, an organizer with Californians United for a Responsible Budget (Curb), a reform group that opposed the bill.

There is no evidence suggesting that these kinds of algorithms have produced positive changes when implemented, said Megan T Stevenson, a George Mason University professor who studied risk assessment in Kentucky. After the state mandated use of the tools in 2011, racial disparities in pre-trial detention worsened over time – with an increase in the rate of white defendants being released, but no change for black defendants.

California’s law also sets the stage for the detention of people who would be scored as “low risk” if they are accused of a serious crime. When Howard was arrested in high school 14 years ago, for example, she had no record, was accomplished in academics and sports, and had family support on the outside. Even if pre-trial release would provide the best outcome, the system today would probably detain her simply due to the allegations.

“It’s a nightmare to even think about,” said Howard, who is also a Curb organizer, noting that she would have likely faced a long prison sentence if she had to fight her case while incarcerated. “It would’ve definitely destroyed my life.”

Instead, she negotiated a deal that allowed her to stay in school and avoid prison time.

Under the new measure, more young defendants could have the same experience as Jayda Rasberry, another Los Angeles reform activist who also faced a serious charge at age 18 – and was detained pre-trial because she couldn’t afford bail.

“When you’re inside of jail, it’s guilty until proven innocent,” said Rasberry, who eventually signed a plea deal and spent six years in state prison. “I just felt like I didn’t matter, and my life was over.”

Pre-trial detention sent Rasberry on a path to a prison system where inmates like her didn’t always survive, the 31-year-old said, noting she lost friends behind bars. “I’m blessed to still be here. I’m functional, but I’m not okay.”

Instead of bail, she added, “there needs to be a system in place that helps us instead of hurts us”.

Howard suggested the state should implement “needs assessments” instead of risk assessments, shifting the focus to rehabilitation and services.

The new system should also do more to give people meaningful due process when prosecutors seek to detain them, instead of giving courts “machinery to increase incarceration”, said John Raphling of the Human Rights Watch.

Senator Bob Hertzberg, co-author of the law, said there would be reviews to ensure the algorithms weren’t biased and noted that the risk assessments were just one tool in determining detention.

Eliminating bail was the “first step” of reform, he added. “We are going to make any and all adjustments to the system to continue to make sure that it’s fair.”