Republican U.S. Sen. John Kennedy, of Louisiana, recently denounced algorithmic pre-trial risk assessment tools as “a dangerous collision of the poorly vetted cost cuts and socialist agendas that are sweeping this country.” However, such fire and brimstone merely demonstrates a woeful misunderstanding of the concept of presumed innocence and the harms of money bail and pre-trial detention.
The presumption of innocence is simple: an accused individual must be presumed innocent until it is found, beyond a reasonable doubt, in a court of law, that he or she is guilty. This principle has existed for centuries, and is a reflection of democratic and republican — not socialist — values. Its lineage traces as far back as to Roman jurisprudence and is more recently reflected in the words of our second president, John Adams: “It’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished.”
Kennedy’s distaste for “emptying jail cells” rather than the unnecessary infliction of harm on those presumed innocent therefore turns one of our nation’s most basic legal principles squarely on its head. After all, at the point at which bail is set, an individual has yet to be determined guilty. For this reason, the courts must presume him or her innocent and operate generally under the presumption of release — setting conditions of bail only as necessary to guarantee appearance at court and to protect individuals from imminent risk of harm. Only in exceptional cases should individuals be preventatively detained pre-trial. And, under the Constitution, judges are expressly forbidden from requiring excessive bail as a mechanism to hold defendants until they are tried.
Moreover, research suggests that being held pre-trial or being assessed money bail increases the chances of conviction, predominantly through guilty pleas. And an historical over-reliance on money bail has often meant the poor are detained simply because they lack the financial means of their wealthier counterparts. This is neither fair nor just.
Put simply, when more individuals are released, they’re better able to defend themselves, and our notion of justice is better preserved. And this is where pre-trial algorithmic assessment tools come in. By using historical data to predict an individual’s likelihood of appearing at court or of committing a new crime, judicial officers are provided with a baseline for comparison that helps them weigh the rights of the accused versus the needs of the justice system and the community. This allows judicial officers to better uphold the presumption of innocence, while still allowing them to consider a variety of other factors and to use their own discretion when a deviation is warranted.
And, in fact, there is evidence to suggest that the use of these tools actually aids rather than endangers public safety. For example, one study in Pittsburgh and Philadelphia found that the assignment of money bail caused as much as a 9% increase in recidivism. Another in Harris County, Texas, found that detaining individuals accused of misdemeanors increases their chances of committing crime in the future. So, while each assessment tool is different and improvements can no doubt be made, those that deter judicial officers from the counterproductive use of detention and money bail may actually make us all safer.
Yes, the adoption of tools that prioritize the presumption of innocence does mean that more people may be released pre-trial. And, in a few tragic cases, this may come at a cost to the public. But in many more cases — the ones Kennedy doesn’t mention — it mediates the harms of the money bail system, reduces expensive an unnecessary pretrial detention, increases public safety and protects our fundamental American right to liberty.
If Kennedy wants us “terrified,” perhaps we should be — but not because more jurisdictions are relying on data and algorithms to try to make the justice system more just. Rather, we should all be scared that in many jurisdictions today, the presumption of innocence no longer matters in practice and all people jailed pretrial — regardless of the severity of their offense or of their actual guilt — are being labeled as “dangerous criminals.” Because make no mistake: if everyone ever accused of a crime is presumed guilty, it won’t be long before none of us is innocent.
Emily Mooney is a criminal justice policy fellow at R Street Institute, a Washington, D.C.-based think tank that promotes free markets and "limited, effective government."