This week I read an article in the Washington Post about the injustice created by imposing bail for suspects and the way to ‘fix the problem.’ In Baltimore, a protester was faced with a 500,000 dollar bail. The family couldn’t pay (an online fundraising drive has raised just over 6,000 dollar). What made this all the more unjust is that ‘meanwhile, all six police officers charged in the death of Freddie Gray on Friday faced bail amounts of $350,000 or less, which they were able to post for their release.’
In the U.S. there are about 750,000 people – 62 percent of the total jail population – in jail without conviction, many of them not dangerous, because they can’t afford to post bail, the Washington Post writes. And this is a problem, not only because jails are overcrowded and expensive, but also because people lose jobs and cars and have to leave their children behind without proper care.
Predict future behaviour
Clearly, setting bail results in unequal treatment and affects people who are suspected of similar crimes differently based on their income. This is unjust: why should you be in jail because you are poor while someone with money who committed the same crime walks free?
They key to a solution, according to the Washington Post, is
to keep in custody only those who either won’t show up for court without posting bail or who are deemed likely to commit more crimes if released. And in fact, there are now sophisticated ways of figuring that out, using a defendant’s criminal history and community ties to predict future behavior: a risk assessment, which the judge uses as a guide in deciding whether to set bail, and for how much.
Risk assessment may at first seem like an excellent solution: we should only want those suspects in jail who are likely to be a danger to society or who are very unlikely to come back for their trial.
‘Do you have a place to live?’
However, because of the way in which risk assessment tools are designed it may result in replacing one class bias with another class bias. The example of risk assessment at Jefferson County Jail makes this clear:
At one booth, a nonuniformed officer questions a tall, rangy man about the domestic violence incident for which the police had picked him up — and asks what might happen if he went back home.
Why did your ex-wife show up at your house? If you return, will she be there? Do you have any debts? Do you have a place to live? A way to get around? A job? Kids? How about a cellphone?
[…]The man is assessed: low, medium or high risk, which describes how likely he is to skip his court date.
Some of the above-mentioned risk factors are still class related. It seems that suspects who have debts and those who are without a job, house and/or car or means to pay for public transport will fall into a higher risk category, compared to people without debts and those with a job, house and car.
Relying on risk assessment solves the problem of unequal treatment only partly. That is, people with low-income jobs who are not able to post bail may now await their trial in freedom because they have a job, however low their salary may be. However, people who are unemployed, or without a house, still run a higher risk to go to jail. Is this justifiable?
What is missing in this story, is a critical assessment of risk assessment itself. In addition to the question of how many false positives (people who are assessed as high risk but who are in fact low risk) we wish the accept, we should also carefully consider which factors should be included.
Risk and race
Identifying risk factors should not be a matter of only doing statistical analyses. First, there may be ethical reasons to not include certain risk factors. There is a reason that risk assessment tools no longer include race, nationality or skin colour (they did until the 1970s, as Bernard Harcourt discusses, and replacing race by risk has not solved the problem).
Similarly for unemployment, debt, housing and other factors related to socioeconomic status, we should discuss whether it is fair to treat people differently based on those factors, given that low income, homelessness and unemployment for many are not a choice or a lifestyle but a problem caused by employers who refuse to pay decent salaries, the loss of (unskilled) jobs, and the decline in affordable housing, at least in certain urban areas.
Nothing to lose?
Second, the argument is that people with jobs, cars and families have much to lose. But it is not that people who do not have all these things have nothing to lose. While unemployed suspects are not losing a job they are still affected by going to jail: during pretrial they cannot get a job and hence no income to pay towards debts. The consequences of going to jail are just as real for unemployed people as for employed people.
I fully support the point made that imposing bail is punishing people because they are poor. But if risk assessment is also based on questions related to jobs, housing and debts, we may still be punishing people for being unemployed, homeless or poor.
Photo by Nathan Rupert on Flickr.