The danger of ‘dangerousness’
State senators have backtracked from their passage of bail reform last year, and are reportedly gearing up to propose new laws that would give judges the discretion to detain innocent-untilproven-guilty people pretrial based on a determination of “risk” or “dangerousness.”
We don’t know what the actual legislative language might look like yet. But whether lawmakers intend to mandate that judges use an algorithmic risk assessment tool to determine who to detain, or whether they will give judges a list of seemingly neutral factors to consider in making their decision, the result will be the same: more pretrial detention, more racial disparities, and ultimately less public safety.
“Dangerousness” is not a scientific quantity that can be measured with a beaker or a laboratory scale. Instead, it is a code word for decisions that take into account past factors such as arrest records, criminal records or someone’s neighborhood of residence or employment status, as well as the current arrest, and then attempt to predict what will happen in the future
Because all of those factors are tainted by past racial disparities and structural inequalities — which bail reform is designed to counter — the results are necessarily biased. Asking judges to focus on risk to a particular person would not solve the problem, because these same past factors would still be part of the calculation. Or, in the words of community leader Roger Clark, such legislation would give judges a “license to discriminate.”
Recent research has shown that when judges are allowed to determine who is “dangerous,” they overdetain black people at rates that cannot be justified by pointing to statistics or to the results of those decisions. For example, one study of judicial decisions written by three economists and published in the Quarterly Journal of Economics in 2018 found that judges in Philadelphia and Miami overestimate the dangerousness of black people charged with crimes, exhibiting racial bias because they fall prey to
“inaccurate race-based stereotypes” in the context of relatively short bail hearings.
And even if we were to give those judges a so-called “risk assessment instrument” to help guide their decision, social science, legal expertise, and the results of on-the-ground activism overwhelmingly show that such risk assessments often deepen racial bias and fail to meaningfully lower the use of pretrial detention. One white paper from MIT signed by 27 experts concluded that pre-trial risk assessments “do not guarantee or even increase the likelihood of better pre-trial outcomes” and thus will “simply shift or obscure problems with current pretrial practices.”
The state Senate is on the verge of reverting back to an idea whose time has passed. If she agrees to use dangerousness as a cover for increasing pretrial detention, Majority Leader Andrea Stewart-Cousins will be needlessly bowing to pressure from white supremacists, law enforcement and fearmongering headlines. The victims of this cowardice will inevitably be black and brown New Yorkers, especially black people and people who live outside New York City, who will be locked in jails for weeks or months or years while still presumed innocent.
Money bail should not be replaced with another system that causes the same harms as money bail but under a different name. New York legislators need to give the new bail laws a true chance to work — not pull the plug two months in. They are at the beginning of a road toward realizing that public safety is on the side of freedom, not incarceration.
Our new laws require a substantial shift in how we think about pretrial justice: We must recognize that communities will be safer when people charged with committing offenses can be home with their families, go to work, and return to court unless and until there is a finding of guilt.
If the Senate is actually interested in working on new legislation that makes communities safer, they could turn instead to laws that fund housing, education, health care and other vital services.
Simonson is an associate professor at Brooklyn Law School.