Currently, the United States is undergoing historic criminal justice reform. Cash bail is one component being reviewed and eradicated, generating change in a system that has been intact not just for decades, but centuries. This is the second in a series of articles written specifically for SWOP Behind Bars (SBB) by a guest panel of authors on the history of cash bail, and the algorithms defining the future: Public Safety Assessment Algorithms:  The Search For The New Minority Report by M. Dante

Bail – as easily defined on Google and Wikipedia – is the release of an accused person awaiting trial, often on the condition that the money or assets guarantee a court appearance. Bail is part of a “punitive” or “punishment” philosophy of reform.

BAIL. Origin  Middle English: from Old French, literally ‘custody, jurisdiction,’ from Old French bailler ‘take charge of,’ from Latin bajulare ‘bear a burden.’

Bail is pretty simple. If an individual is arrested and charged with a crime, a dollar amount is set by a judge after arrest while awaiting trial. Usually, 10% unless it is an extreme or violent situation. Besides cash, there are the different types of bail which include: surety bond, recognizance, unsecured bail, percentage bail, citation release, property bond, immigration bond, pretrial, combinations, conditions, protective order. Bail bondsmen are a 24/7 cash lucrative competitive business with similar rogue allure to bounty hunting. Though new careers may be on the horizon for one of the oldest professions as bail bondsmen potentially become obsolete with the implementation of computer-generated algorithms determining two tiers of probability and assigning a numeric assessment to a sentence review.

Criminal justice reform efforts across the nation are currently testing risk assessment algorithms as an alternative to the old cash bail system which has come to be considered a conflict to the protections offered by the sixth and eighth amendments of the constitution with respect to the prohibition against excessive bail and the right to demand bail if it is an option.  Bail was not considered a constitutional right until the “Bail Reform Act” (BRA) of 1966 which forced expediency in sentencing based on factors of family and community ties, employment history, and past record.

In 1984 Congress implemented the “Sentencing Reform Act” (SRA)  considered at the time to counter the 1966 BRA new bail law based on factors of flight risk leading into ‘Evidence-Based Practices” (EBP) where instead of history and personality characteristics, sentencing decisions became based on scientific and quantitative methods sometimes referred to as  “criminogenic needs”.

Since 2016 hot topic in the news has been “Predictive Algorithms” and  “RNR” or “Risk – Needs – Responsivity” and a new era of “Risk Assessment Software” (RAS) discussed in every major print and cyber media view including – though by no means limited to – ABA Journal, NOLO, NJTV, NPR, NY Times, and VICE. In a detailed collaborative article shared in the public domain by Harvard Law, the “use of risk assessments in sentencing” is explained with positive favor. Especially visible in New Jersey after a year-long test of the new system. Interesting to note, the  “public safety assessment” or “PSA”  has been a  project of the Laura and John Arnold Foundation, supported with funds from Mr. Arnold’s hedge fund management expertise and invested into criminal justice reform. Utilizing “predictive algorithms” to “reduce recidivism” focusing on what Richard E Redding describes as “particular offender characteristics and criminogenic needs” in what could be defined as an algorithmic similar to the concept of precogs in the 1956 Philip K. Dick short story, “The Minority Report” where crime is predetermined,  and therefore prevented,  keeping society safe from murder.

Though New Jersey is not the first state to test the PSA algorithms, the last twelve months have generated more media than any other previous effort, and other states are now fast following the trend.

The (Iowa) Business Journal announced 16 January 2018 the PSA inception in Polk County, adding: “The assessment also recommends supervisory measures that the presiding judge can consider before releasing a defendant before trial. However, the final decision regarding release or detention always lies with the judge. The PSA is intended to serve as a resource for consideration, rather than a replacement for judicial discretion. The assessment was developed by the Laura and John Arnold Foundation after researchers analyzed more than 1.5 million cases from more than 300 U.S. jurisdictions. Researchers tested each risk factor, and the nine predictive factors considered by the PSA are all gender- and race-neutral.”

Is cash and surety bail for nonviolent crimes becoming obsolete? Though smaller and more ethnic neighborhoods have competitive storefronts advertising 24/7 services, it is clear the computerized solutions to socioeconomic and racial disparities is the wave the system is riding on.

What will this mean to consensual adults working as prostitutes and those defining themselves as “sex workers”? SWOP Behind Bars would love to hear from you on this emerging topic! Article three will Be from a prostitutes perspective. Stay tuned for that and more!

This article made possible thanks to: A central, open-access repository of research by members of the Harvard community. Other resources: The Business Journal, Google, Wikipedia, NJTV, Nolo dot com, ABA Journal, New York Times, National Public Radio, VICE.

Though every regional media outlet covered the algorithms one article that was early on in the discussion and made it easy to understand appeared on VICE MAGAZINE MOTHERBOARD:

An Algorithm Is Replacing Bail Hearings in New Jersey – Motherboard

M. DANTE Greater Philadelphia Metro: Most well known for her critical writing, commentary, and sexual communication workshops, she also is popular for her esoteric creative non-fiction and poetry. Active since 2003 in discussion on survival sex, sex work, and sex trafficking, she has been writing on the topic since the early 1990s, supporting programs and legislation essential to empowerment, community health and human rights.

Find out more: Pennsylvania Workers-Survivors Community Clearinghouse.