Machine Bias

Across the United States, individuals and organizations are seeking to shift the criminal justice system through District Attorney elections. From online communities like colorofchange.org, which seeks to support grassroots election efforts, to individuals like Minnesota’s Mark Haase, who is running on a platform of diversity and inclusion, to the Texas Organizing Project that wants to empower Black and Latinx communities, each of these missions seeks to create more equity and transparency in the criminal justice system.

The Bail Project is posting bond for men and women who cannot afford to pay and haven’t been convicted of a crime. Based in Detroit, the nonprofit has locations across the country and uses a revolving fund to bail out individuals, meaning once the bond is recovered, the funding is then available for another person. Its Detroit location has bailed out nearly 200 individuals in an effort to end mass incarceration and prove that holding people – most of whom are people of color or experiencing poverty – does not diminish recidivism.

Nearly three decades after Washington voters made their state the first to enact a three-strikes law, imposing life imprisonment for repeated, serious offenses, some prosecutors have found ways to avoid the law's effects that are seen as unduly harsh or racially biased. Some have interpreted a law authorizing resentencing to apply to three-strikes cases. Others have pushed the governor to grant clemency more often. This new willingness to question the law's effects is not universal among prosecutors, and the state Supreme Court soon will weigh in on the issue.

The spread of COVID-19 in jails prompted many releases from custody and a surge in donations to bail funds that pay for people's release. But those fixes have done little to address the underlying challenges of detaining millions of people before trial, either because they cannot afford cash bail or because risk-assessment tools deem them a threat to public safety or unlikely to return to court. In two South Florida jails, the struggles over containing the virus, providing due process to criminal defendants, and ensuring public safety have brought the debate into sharper focus.

The Colorado Pretrial Assessment Tool uses a formula to weigh the risk of releasing someone from jail while they await trial. While prosecutors say the tool is better than nothing, critics, backed by a study of the tool's effects, say it disproportionately harms people of color and people experiencing homelessness. Risk assessment algorithms consider a number of facts about a defendant's past and present to predict whether they can leave jail without committing new crimes or failing to make court appearances. But because they penalize already-overpoliced populations, they are not considered objective.

Around the United States, news organizations are taking a new approach to the use of mugshots in their crime reporting. While still the norm in many places, newsrooms like the Houston Chronicle have stopped publishing the common “mugshot slideshow,” and some, including Connecticut’s New Haven Independent, have stopped publishing them altogether. The practice, often used to generate page views, depict people at their worst, doing more harm than anything else.

The way in which Kentucky’s Louisville Metro Police Department handles rape cases has come into question. The department’s low level of cases being brought to trial is because of the extra step police officers take: checking with prosecutors to see if they’ll take the case to court. If prosecutors won’t, the police don’t make arrests. The policy is justified as victim-centered. But experts say this, combined with other problematic practices by the LMPD, can leave survivors feeling as though they aren’t believed and alone with their trauma.

In 2017, Harris County, TX saw a year where no one was sentenced to death and no one was executed. The county, nicknamed as the capital of capital punishment, is seeing a shift in the support of the death penalty. While studies haven’t shown a definitive answer, it has been linked to new, reform-focused DAs, the introduction of life sentences without parole, and Supreme Court decisions that likely diminished the use of capital punishment.

Public defenders' caseloads are too large for them to be able to provide the details that a loved one of an offender can provide in court. Participatory Defense programs train loved ones of the offender to be able to provide a testimony, often resulting in less severe sentences.

Partners for Justice embeds trained "client advocates" inside public defenders' offices to address defendants' nonlegal needs (such as: housing, addiction treatment, and mental health services). This has demonstrably improved outcomes, including a nearly 50% increase in case dismissals or diversions in Delaware County and a fivefold increase in public service referrals across New Jersey pilot counties.