Academic journal article Harvard Law Review

Bail Reform and Risk Assessment: The Cautionary Tale of Federal Sentencing

Academic journal article Harvard Law Review

Bail Reform and Risk Assessment: The Cautionary Tale of Federal Sentencing

Article excerpt

Across the country, from New Jersey to Texas to California, bail reform is being debated, implemented, and litigated at the state and local levels. Lawmakers and the public are learning that cash bail is excessive, discriminatory, and costly for taxpayers and communities. With promises to replace judicial instincts with validated algorithms and to reserve detention for high-risk defendants, risk assessment tools have become a hallmark of contemporary pretrial reform. Risk assessment tools have proliferated despite substantial criticisms that the tools depend upon and reinforce racially biased data and that the tools' accuracy is overblown or unknown. Part I of this Note examines contemporary bail practices, recent reforms, and risk assessments' promises and shortcomings. Part II discusses federal sentencing reform, which originally sought a more empirical approach to criminal justice but failed. Part III applies the lesson of sentencing reform to bail reform today. Despite endorsing empirical tools, legislatures are prone to interfering with the evidence that informs those tools or with the tools themselves. Even after reforms, system actors retain misaligned incentives to incarcerate too many people. Technocratic instruments like risk assessments may obscure but cannot answer tough, fundamental questions of system design. But recent pretrial reforms have shown early signs of progress. If risk assessments are paired with adequate safeguards, sustained reductions in incarceration and progress toward equal treatment may be possible.


Kalief Browder was a sixteen-year-old kid living with his family in the Bronx when the police picked him up off the sidewalk and charged him with robbery, grand larceny, and assault--for a crime he had not committed. (1) A judge set his bail at three thousand dollars, which was more than his family could afford. So Browder was sent to Rikers Island, New York City's notorious and abusive jail, (2) where he awaited trial for three years. (3) For at least two of those years, jail guards forced him to live in solitary confinement. When not in solitary, he was often beaten by guards and other inmates. (4) Every now and then, the district attorney's office would offer him plea deals, including an offer that would have let him leave jail that day for time served. (5) But because he was innocent, Browder refused to plead guilty. (6) After imprisoning Browder for three years, the Bronx District Attorney's office dropped the case, dismissing all charges against him. (7) There was no trial. Browder had missed years of high school and graduation. (8) The trauma of jail and solitary confinement haunted Browder; without a job or a high school diploma, he found himself unable to adjust to regular life. Two years after being released, Kalief Browder killed himself. (9)

Through news and social media, (10) Browder's tragic story and the stories of others like him have brought renewed public attention to the issue of bail and pretrial detention in our country. In the past year alone, the editorial boards of the Los Angeles Times, Washington Post, and New York Times have all written about the need to abolish cash bail. (11) NBC and Vice News have run special features on cash bail and opportunities for reform. (12)

Bail practices vary, but most jurisdictions adhere to the following methods (13): After charges are filed against someone, a judge or magistrate first determines whether to jail the person without the possibility of release until the case is over. (14) In most jurisdictions, a person may be detained pretrial only if there is a high risk that the person will not appear in court or that the person will be a danger to the community before trial. (15) The Supreme Court has cautioned that "[i]n our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." (16)

A judge can then decide to release the person if they promise to return to court (release on personal recognizance), conditionally release the person, or release the person on bail. …

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