Imagine a world dominated by computer algorithms deciding who’s a danger to public safety and made by the same predictive models that help you discover a new TV show on Netflix. It might sound like bad science fiction, but it’s a reality that could be California’s future unless Proposition 25 is defeated on Nov. 3.
California has made significant progress in recent years on creating a better criminal justice system, but Prop. 25 represents regression and warrants your no vote.
For anyone arrested in California, Prop. 25 will end the constitutional right to choose bail or one of the pre-trial release programs administered by 46 counties. Instead, computer algorithms will determine who qualifies for release before trial.
As a retired Superior Court judge, I fear Prop. 25 is a radical experiment, eliminating the surest, quickest option for people to get out of jail before trial and replacing it with a system even more discriminatory toward African-Americans, Latinos and other minorities.
That’s why the bias created in Prop. 25 is opposed by civil rights groups such as the California State Conference of the NAACP and United Latinos Vote.
At the heart of the issue is Prop. 25’s reliance on unproven “risk assessment” tools, which are computer-based models using a defendant’s history to predict their likelihood to appear for pre-trial proceedings. Under Prop. 25, those models will determine whether a defendant is released before trial with little discretion left to judges. There’s a misconception that automating decisions reduces human bias. It does not.
The Partnership for AI, a non-profit organization established to create “best practices” for artificial intelligence, has issued a stark warning about “serious shortcomings” in using algorithms for public safety decisions. A recent report said there are “deep ethical, technical, and statistical challenges” that must be solved before risk assessment tools can render fair decisions, and those issues haven’t been resolved. The non-partisan Public Policy Institute of California echoes those concerns and predicts that Prop. 25 will likely produce a system where African Americans and other minorities are jailed more often due to risk assessments.
Moreover, it’s understandable that most people don’t have experience with criminal courts and, therefore, don’t realize that every criminal defendant is represented by an attorney.
Defendants’ attorneys often request the judge to reduce or eliminate bail for their client. The court then conducts a hearing at which witnesses can testify under oath for and against release from jail without bail or reduction of the bail amount. Such proceedings occur every day in California criminal courts. Sadly, those federal and state constitutional bail proceedings aren’t reported to the public by the media.
In my experience, judges carefully consider the unique factors of each case in determining bail. We know it’s expensive to keep defendants in jail awaiting trial and set bail accordingly to ensure court appearances and prevent other crimes before trial. Prop. 25 would destroy court autonomy in favor of an unproven computer program.
Similar to Prop. 25, the State of New Jersey recently eliminated bail. One state lawmaker who initially supported the effort later urged California to avoid adopting a similar system using pre- trial assessments, writing it “has been an absolute disaster” once put into practice. Judges will need to have faith in decisions made through such pre-trial assessments, but nothing to date justifies judges having confidence in them.
Prop. 25 may sound like a good idea in theory, but it only enhances, not reduces, any racial bias in the criminal justice system while embracing an unproven system that undermines our courts.
That’s why civil rights groups, retired judges, local elected officials and victims’ right organizations urge a no vote on Prop. 25.
Quentin Kopp is a retired San Mateo County Superior Court judge, former state senator, and former member of the San Francisco Board of Supervisors.
