Justice by Algorithm
Clarence Barnham is a soft-spoken 53-year-old man with a wheezy voice and bright, twinkling eyes. He’s struggled with drug addiction and mental illness for over a decade, and has a long arrest record because of it. Nearly all of his fourteen convictions have been for drug charges; he’s never been accused of a violent crime and only missed a court date once.
It’s not the kind of a criminal history that would seem to indicate that Barnham, who’s lived in West Baltimore his whole life, would be a public safety or flight risk. But after an August arrest for distribution and possession of heroin (charges he contests), he sat in jail for three months, unable to pay his $25,000 bail. In October, having found an in-house drug rehabilitation program through his public defender, Barnham was granted another bail review. At the rehearing, both Barnham's public defender and the prosecutor agreed he should be released without bail, citing the drug treatment program, his steady employment and family support network. But the pretrial service agent insisted on $5,000 bail—reversing his own agency's position in the first hearing and even interjecting after the prosecutor spoke to insist on bail being given.
Why would pretrial services—which is supposed to be a neutral party that provides background information on defendants to judges—be tougher on a defendant than the prosecutor? Part of the answer may lie in the secret pretrial risk score the agency generated for Barnham.
Baltimore’s Pretrial Release Services, like many agencies nationwide, uses a risk assessment tool to give defendants proceeding through the court system scores based upon statistical likelihoods of failure to appear or rearrest. These scores are supposed to help pretrial service agents recommend bail decisions to judges based on objective, standardized criteria. But no one else involved in the case, including the defendant and their attorney, gets to see or even hear about their score, much less the impact it has on their bail recommendation.
The use of risk assessment tools has rapidly spread to many different parts of the criminal justice system, from bail to parole, in jurisdictions across the country. Less than 10 percent of U.S. jurisdictions use pretrial risk assessments today, but support for their introduction is growing in cities and states nationwide, financed by foundations interested in finding ways to release more “low-risk” defendants—and cutting down on the billions of dollars spent to hold them.