A new scientific method for bail reform

Cities and towns around the country are turning to a new scientifically based algorithm that will work to help judges make decisions during pretrial processes in an attempt to create fairer judicial procedures that are less focused on a cash-based bail system.

The algorithm, called the Public Safety Assessment (PSA) tool, was developed by Arnold Ventures, a philanthropy founded by billionaire John Arnold and his wife Laura Arnold. Advancing Pretrial Policy & Research, a project of the National Partnership for Pretrial Justice, is supported by Arnold Ventures and assists jurisdictions interested in implementing the PSA. The assessment tool is free and has been implemented in more than 50 jurisdictions in states, cities and counties around the country, according to sources involved in the development of risk assessment tools.

According to those close to its creation, the PSA algorithm was formulated by analyzing 750,000 historical criminal cases around the country, which pinpoint nine factors that best determine a set of critical pretrial questions: How likely would a released detainee be to appear in court for their trial, commit a new crime and perpetrate a violent criminal act?

Detainees are scored on a scale of 1 to 6, in what is called a release conditions matrix, according to creators of the PSA. It is then up to the jurisdiction to determine what happens to the charged individual based on their score. The PSA was never created to replace judges as decision makers in pretrial releases. Rather, it’s another tool they can use when deciding to release a detainee before their trial, according to sources close to the development of PSA.

“We're going to hopefully ensure that people who cannot afford a bond are not going to be held just because they can't afford it,” Nushin Sayfie, chief judge of Miami-Dade County in Florida, told ABC News. “We're also going to make sure that people that are going to pose any kind of threat or danger to the community that they're going to actually see a judge before they're released.”

According to those familiar with the creation of risk-assessment tools, the PSA was created in hopes of ending the cash-bail system. They believe judges can implement other conditions, such as court reminders through text, pretrial supervision and criminal history checks, once a month, in lieu of cash bonds.

In the current system, a first-time offender arrested in Miami for shoplifting could stay detained in jail until their trial if they do not have enough money to pay their bail. And if someone with enough money were detained for aggravated battery with a firearm, they could get out on bond without even having to see a judge before their trial, according to Sayfie.

Discrepancies like these in the 11th Judicial Circuit of Florida are a big reason why Miami hopes to implement a new PSA algorithm that will help officials reform the county's pretrial bail processes.

Florida Gov. Ron DeSantis voiced opposition against “rogue” judges releasing people into the community and announced at a press conference in Miami last week that he would unveil new criminal-justice legislation.

Sayfie’s office told ABC News they would put the pretrial reform initiative on hold until after DeSantis delivers his proposal at the Florida legislative session this spring. Sayfie’s office is confident their bail reform plans fall in line with DeSantis’ views on criminal justice and believe their policies could still roll out by the end of this year, as planned.

But there are critics of the algorithm on both sides of the bail reform issue.

“There's been so many panaceas in the criminal justice system that we've been promised are going to fundamentally change and move justice forward by, sort of, leaps and bounds,” Patrick Kenneally, McHenry County State Attorney in Illinois, said. “I am skeptical that these types of things are going to fundamentally change how courts operate or increase the accuracy of projecting future behavior.”

Illinois was poised to become the first state in the country to eliminate the cash bail system. But Kenneally joined state attorneys in other Illinois counties in a lawsuit halting the enactment of the law. According to Kenneally, the bill is currently on hold as it moves through the appellate process before the Illinois Supreme Court.

According to sources close to the development of the PSA tool, discussions about eliminating cash bail become conflated by prosecutors who believe cashless bail policies will make communities inherently more dangerous. Research shows money doesn't improve court appearance or community safety; rather, it mostly extracts wealth from poorer communities, according to those familiar with the development of risk assessment algorithms.

"The kind of biggest problem with these tools is that we actually can't predict serious crime that well. We haven't been able to for decades and decades,” Colin Doyle, Associate Professor at Loyola Law School, Los Angeles, said. “There are still real limits to it and there are real limits to being able to predict human behavior, particularly rare actions like violent crime.”

There are those like Megan Guevara, executive partner with the Pretrial Justice Institute, who agree that bail reform should change to a cashless system but think the PSA tool is not the answer because she says the factors considered reflect inherent racial bias.

“When criminal history data, like the number of times somebody has previously been arrested or previously been convicted, is used to calculate a score, we know that people of color in the United States are more likely to have been arrested, more likely to live in over-policed communities and more likely to have been convicted of a crime,” Guevara said. “So, it means that there's racial bias baked into those tools.”

Those close to the development of risk assessment tools admit that they haven’t seen a reduction in racial disparities in jurisdictions that have implemented the algorithm. PSA can help reduce the reliance on a cash-bail system, but on its own, it won’t eliminate disparities in the system, according to those familiar with the PSA formulation.

New Jersey began applying the PSA tool as part of an overhaul plan for its judicial system in 2017. The inmate population, which was 8,482 in 2018, dropped in 7,937 in 2019. But in 2020, restrictions were put in place to combat COVID-19, slowing the criminal justice process and increasing the jail population to 8,930, according to New Jersey courts. However, serious crime offenses, which include murder, rape, aggravated assault and burglary, fell to 164,965 in 2020 from 212,346 in 2017, according to the New Jersey government records.

But in New Mexico, 80 percent of detainees the algorithm recommended be released in Bernalillo County were still detained by the courts because of the seriousness of their crimes, according to the Bernalillo County district attorney.

Judge Sayfie is eager to implement the algorithm in her district, but isn’t planning on eliminating cash bail.

“I want to assure people that we are doing everything we can, and we truly believe that this is going to improve public safety,” Sayfie said. “More people who are arrested currently on firearm charges are going to be seeing a judge that currently don't. And I believe it's also going to be better because people will get to be released without having to post a bond if they're low risk.”