As technology continues to invade different facets of society, the criminal justice system is no exception. There are many ways in which technology has led to change within the criminal justice system, and one particularly visible way is in the context of bail reform. Numerous jurisdictions have replaced or supplemented traditional money bail with an algorithm that calculates an individual’s risk to decide whether or not to release the accused. And nowhere has the implementation of the technology been more extensive than in New Jersey. The algorithm used in New Jersey relies on a set of nine factors to help the judge reach a decision.
Many agree that the money bail system leads to excessive pretrial incarceration of individuals simply due to their inability to pay, and the negative consequences for even those ultimately exonerated can be severe. One study of the New Jersey jail population suggested that almost 40% of those incarcerated would not be in jail if they could afford to post bail. The notion that incarceration should be based on merit rather than finances seems intuitive and not particularly controversial. We obviously do not want dangerous criminals roaming the streets simply because they are wealthy, and the excessive incarceration of low level offenders due to their inability to pay small amounts should be equally concerning. Given the ingrained nature of bail and a seeming lack of alternatives, however, the system has been slow to change. The emergence of data and technology has enabled reformers to finally bring about much needed change to the broken bail system.
The use of algorithms and data in place of bail has already started to pay dividends in New Jersey, as the state’s jail population has declined since the system’s implementation at the beginning of this year. Although the system is in its early stages, it has already received positive reviews from officials in New Jersey. The ACLU is a fervent supporter of the risk assessment technology and its ability to make New Jersey’s criminal justice system more equitable. Judges, including the Chief Justice of the New Jersey Supreme Court, feel strongly about the ability of this change to better serve the interests of justice. While the technology has faced some inevitable criticism from elected officials and other state leaders in the early going, it is important to keep in mind that change takes time. In fact, modifications to New Jersey’s system have already occurred and there will hopefully continue to be more positive changes in the future.
There are stories of the downsides of the use of these algorithms in New Jersey, and the technology undoubtedly remains far from perfect in many ways. Of course, dangerous offenders could just as easily escape detention under a money bail system simply because they could afford to pay. Bail bondsmen are obviously opposed to these changes, as eliminating bail threatens the existence of their business, and lawsuits have been filed. Above all else, the most troubling aspect of the influx of technology may be the accusation that the algorithms are biased or even racist. While there may be validity to this criticism, it does not address the core question: what is the best alternative available? Given the inherent inequality of a money bail system, we can only hope that even an imperfect risk assessment system is a step in the right direction. It is also important to remember that the algorithms typically assist the decision-making process rather than fully replace the discretion of judges, as is the case in New Jersey.
There is certainly progress to be made with regard to the existing systems used in courts in New Jersey and throughout the nation. Nonetheless, it is clear that advances in technology have created possibilities that would never have been possible several decades ago. Even a small improvement can have a huge impact. Given the success that New Jersey has experienced, it may only be a matter of time before other jurisdictions follow New Jersey’s lead and adopt similar algorithms. The bipartisan nature of New Jersey’s bail reform efforts may also be instructive; the fact that bail reform receives support from those on both sides of the aisle suggests that opportunities for expansion of technology may transcend politics in a way that so many other issues cannot. The hope presented by these technological advances has the potential to historically transform this nation’s criminal justice system for the benefit of all citizens.
Michael Stern is a J.D. candidate, 2019, at NYU School of Law.