ACLU-CO Releases Letter on Dangerous, Misleading and Discriminatory Pretrial Risk Assessment Tools
OCT. 29, 2020. This morning, the ACLU-CO released a data-driven letter highlighting the underreported and concerning findings of the taxpayer-funded Colorado Pretrial Assessment Tool (CPAT) Validation Study. The Study assessed the CPAT, currently used by judges across the state in pretrial decision making. People incarcerated pretrial have not been convicted of a crime, are presumptively innocent in the eyes of the law, and remain in jail only when they do not have the money to pay their bond. The CPAT is a key factor in deciding whether to set a money bond and what amount to set it in and, therefore, influences who will be incarcerated pretrial. CPAT also is a key driver in deciding whether to place onerous conditions, such as GPS monitoring, upon people who are released. The study found the CPAT so deeply flawed that it proposed a new risk assessment instrument, the CPAT-R, to replace it.
Yet, as the ACLU letter shows, the Study’s data strongly supports a conclusion that both the CPAT and CPAT-R are ineffective, racist and wrong for Colorado. The key takeaways from the letter include:
- Both the CPAT and CPAT-R unfairly discriminate against Black people and people experiencing homelessness.
- Although White people and Black people engage in pretrial misconduct at the same rates, Black people are more likely to be incorrectly labeled as “high risk” by both the CPAT and the CPAT-R. As a result, Black people are more likely to be unnecessarily incarcerated pretrial or given onerous, costly and unnecessary, conditions of release.
- Both the CPAT and CPAT-R perform marginally at predicting pretrial outcomes, with dire consequences for those wrongly placed in “high risk” categories.
- Neither the CPAT nor CPAT-R predict the pretrial harms that matter, which are violence or flight from prosecution. Instead, they attempt to predict only whether there will be a single missed court appearance (regardless of whether willful) or a single criminal charge (which is overwhelmingly likely to be a misdemeanor).
- The pretrial population is extremely low-risk – less than 2% will be charged with a violent offense if released pretrial. For those charged with any offense, it is likely to be a misdemeanor.
- The CPAT-R wildly overestimates people’s pretrial risk. People deemed “high risk” by the CPAT-R have a 74% likelihood of avoiding any criminal charge if released pretrial, and 66% are likely to appear at every single court appearance. A tool that identifies as high-risk so many people that succeed pretrial is, quite simply, useless.
Pretrial risk assessment tools, once seen as the answer to the harmful cash bail system, are increasingly discredited. As the Pretrial Justice Institute (PJI) recently explained its shift from heralding pretrial risk assessment tools to wholesale rejecting them: “Regardless of their science, brand, or age, these tools are derived from data reflecting structural racism and institutional inequity that impact our court and law enforcement policies and practices. Use of that data then deepens the inequity.” The ACLU’s letter urges Colorado to abandon these tools, which further entrench racial disparities in the criminal legal system and serve as a crutch to replace thoughtful, individualized judicial decision making. These tool’s false appearance of objectivity makes them dangerous – they give the impression of objective decision making while caping for the racist inputs and outcomes that drive the tools’ algorithm.
Risk assessment scores have a direct impact on people’s liberty and their ability to defend themselves against criminal charges. The stakes could not be higher. If Colorado is to use a pretrial risk assessment tool, we need to get it right. Yet, both the CPAT and CPAT-R are broken beyond repair.
A Letter on Pretrial Risk Assessment Tools in Colorado: https://aclu-co.org/wp-content/uploads/2020/01/Dangerous-Misleading-and-Biased-A-Letter-on-Pretrial-Risk-Assessment-Tools-in-Colorado.pdf
Pretrial Justice Institute’s Statement on Pretrial Risk Assessment tools: https://www.pretrial.org/wp-content/uploads/Risk-Statement-PJI-2020.pdf
Shared Statement of Civil Rights Concern regarding Pretrial Risk Assessment Tools: http://civilrightsdocs.info/pdf/criminal-justice/Pretrial-Risk-Assessment-Full.pdf
ACLU of CO Pretrial Justice Campaign: https://aclu-co.org/campaigns/bring-our-neighbors-home/