Critics: Pretrial assessment formula reflects "structural racism"

Rep. Vincent Dixie, photographed in the Cordell Hull Legislative Building in March 2021. (Photo: John Partipilo)

A pretrial assessment algorithm incorporated into one of Gov. Bill Lee's criminal justice bills is being questioned because it injects "structural racism and institutional inequity" into the court system, according to critics.

House Bill 784 sponsored by House Majority Leader William Lamberth requires judges and magistrates to use an evidence-based pretrial risk assessment to determine whether a defendant should be held in jail before court or bail should be set to ensure a defendant returns for court appearances. Senate Majority Leader Jack Johnson, a Franklin Republican, is sponsoring SB767.

House Minority Chairman Vincent Dixie, a bail bondsman by trade, said it's "not fair" to use such a formula to determine whether someone should be kept in jail or released on bail before court, and he considers the algorithm to be "racist" because it targets people based on where they live and their family history.

The odds are people raised in the North Nashville area with a 37208 ZIP code won't fare well on this formula, Dixie said.

"The algorithm is inherently biased. They ask questions such as what's your ZIP code? What's your level of education? What's your parents' level of education? Are your parents married? Are you from a single-parent home?" said Dixie, a Nashville Democrat.

Using answers from those types of questions, the algorithm spits out a response for a defendant's pretrial risk assessment. That type of formula takes away a judge's discretion to decide the fate of a defendant rather than knowledge of the person, such as whether he or she stayed drug-free for 11 months but slipped up.

If the state depends completely on such a formula, the judge wouldn't be able to give the defendant an opportunity to pass a drug test and make bail, Dixie said.

"That algorithm's been troubled since the beginning. Even the originators of it, going back six years in the state of Pennsylvania, said it's no good," Dixie said.

Dixie speculated that Gov. Bill Lee doesn't understand how the formula affects people.

Asked about the legislation and whether it could negatively affect people of color, Gov. Lee said last week, changes are constantly being made to his legislation. He couldn't speak to the legislation's details and said his office wouldn't know what they look like until they get through the Legislature's committee system.

Under the legislation, a magistrate also may consider the defendant's length of residence in the community, employment status, criminal record, including previous releases on recognizance or bail and whether the person was already out on bail when charged with the offense, nature of the offense, substance use or mental health issues and any other factors indicating ties to the community or bearing on the risk of the defendant's willful failure to appear in court.

Those give judges and magistrates some discretion in pretrial assessments, making the bill a little easier to stomach for those working in the criminal justice system.

Still, the Baltimore, Maryland-based Pretrial Justice Institute, a group dedicated to safe and fair pretrial justice, released a paper in 2020 reversing course, saying these types of pretrial risk assessment tools are "no longer" a part of its solution for "building equitable pretrial justice systems."

"Regardless of their science, brand or age, these tools are derived from data reflecting structural racism and institutional inequity that impact our court and law enforcement policies and practices. Use of that data then deepens the inequity," the institute wrote.

The institute said it previously believed using a "transparent and consistent" research-based tool could reduce jail populations and racial disparities and keep communities safer. It also believed coupling that with the end to money bonds would cut pretrial jail populations.

Despite concerns raised by civil rights groups, researchers and those affected, the institute stuck with its argument for several years, saying it wanted to fight the status quo. But, it acknowledged in the 2020 paper, "We made a mistake – we did not have the right people at the table when we were designing our roadmap to decarceration, particularly individuals directly impacted by the system."

The institute admitted it was "wrong" for using risk tools as part of its "smart" pretrial justice framework.

The institute contends it has "consistently" opposed pretrial risk assessment tools for detention decisions but is now expanding that opposition to setting restrictions on pretrial liberty, such as reporting visits, electronic monitoring, curfews and drug testing. The group also remains opposed to the use of secured financial bonds that enable some "to buy their freedom" while others are jailed.

The legislation is to be considered Tuesday in finance committees of the House and Senate. Lamberth, a Portland Republican, noted much of the bill is already included in state law.

"The main difference is they're saying you have to use a risk assessment tool, but it doesn't specify which one. So we're not actually requiring any one specific tool, but what we are saying is every single judicial commissioner that's setting a bond should look at all those factors and take in a risk assessment to the community as part of setting bonds," Lamberth said.

Either a citation or release on recognizance should be considered at the outset, followed by risk assessment and other factors that go into consideration for setting a bond, he added.

Lamberth pointed out the state wants to encourage use of pretrial supervision and pretrial release as well as electronic monitors and bond supervision, all of which would enable someone to avoid posting a cash bond while still facing some restrictions.

"Nothing in this bill changes that, but we do encourage, in fact we require, a risk assessment as well as the rest of those factors to keep the community safe," he said.