Open the Jail Cell Doors, HAL: A Guarded Embrace of Pretrial Risk Assessment Instruments

By Glen J. Dalakian II

Abstract

In recent years, criminal justice reformers have focused their attention on
pretrial detention as a uniquely solvable contributor to the horrors of modern
mass incarceration. While reform of bail practices can take many forms, one
of the most pioneering and controversial techniques is the adoption of
actuarial models to inform pretrial decision-making. These models are
designed to supplement or replace the unpredictable and discriminatory
status quo of judicial discretion at arraignment. This Note argues that
policymakers should experiment with risk assessment instruments as a
component of their bail reform efforts, but only if appropriate safeguards are
in place.

Concerns for protecting individual constitutional rights, mitigating racial
disparities, and avoiding the drawbacks of machine learning are the key
challenges facing reformers and jurisdictions adopting pretrial risk
assessment instruments. Absent proper precautions, risk assessment
instruments can reinforce, rather than alleviate, modern criminal justice
disparities. Drawing from a case study of New Jersey’s recent bail reform
program, this Note examines the efficacy, impact, and pitfalls of risk
assessment instrument adoption. Finally, this Note offers a broad framework
for policymakers seeking to thoughtfully experiment with risk assessment
instruments in their own jurisdictions.