In Colorado, some say pretrial risk assessments are biased, others say they’re better than nothing

Let’s start with a theoretical scenario: Al Capone and Mother Theresa are both arrested and charged with committing murder. Based on that charge, bond is set at $5 million for each of them. Given what we know about them, who do you think would be seen as a lower risk to the community if released? Probably Mother Theresa. But who do you think is going to be able to pay bail and be released? Definitely Al Capone. 

It’s a conundrum that has plagued the criminal justice system in the U.S. for decades, as high incarceration rates have been driven by pretrial detention, i.e., holding people awaiting trial.

But what if there was a way to review someone’s personal history — previous interactions with law enforcement and courts, involvement with drugs and alcohol, living situation, etc. — in order to assess their risk if released? 

That’s the idea behind pretrial risk assessments, which are used within the criminal justice system to determine if and under what conditions someone can be released into the community while they wait for the judicial process to play out. In Colorado, such a tool has been used by many jurisdictions since 2013 in an attempt to lower pretrial jail populations, largely supported by district attorneys, pretrial services departments, prominent legislators and others. However, there’s been increasing concern among criminal and racial justice advocates across the country that these assessments reproduce certain biases — especially toward people of color and those experiencing homelessness — that exist within the current criminal justice system. 

In response to a recent study of the Colorado Pretrial Assessment Tool (CPAT) that analyses this bias and recommends a revised tool, ACLU Colorado argues the use of such a tool leads statewide pretrial reform efforts in the wrong direction. What has been more effective, they say, is some of the simple policies local jails and prisons have used in response to COVID-19, essentially halving the state’s incarcerated population in six months. 

“Risk assessment tools have not decreased the pretrial population,” Rebecca Wallace, senior staff attorney and senior policy counsel of ACLU Colorado, says. “They haven’t worked. It is a crutch. It has the aura of objective decision-making that is actually a recreation of the biases that are baked into the current system, but we take those biases and we make them look objective, and that is actually more harmful.”

Read more here