Topic: Presumption of Innocence

A coalition of criminal justice groups issued a statement today voicing opposition to the U.S. Department of Housing and Urban Development’s (HUD) recent proposal to amend its so-called “disparate impact” rule under the Fair Housing Act. The disparate impact rule permitted people to bring legal claims against housing policies and practices that, while not motivated by discriminatory intent, predictably harmed protected groups, including people of color.

“We join together as diverse voices from the criminal justice field to strongly oppose HUD’s proposed rule regarding the disparate impact standard, a key tool used to enforce fair housing policies and practices across the country. If enacted, the rule change would limit access to fair housing for people with a criminal record and create yet another barrier for people who have paid their debts and are working hard to start a new life.

HUD’s current guidance recognizes that housing policies and practices that unduly burden people on the basis of their criminal records may be a violation of the Fair Housing Act because they disproportionately impact people of color. This may include creating a blanket ban or other exclusionary practices—including through housing applications or evictions— based on past arrest, including an arrest that doesn’t lead to a conviction or is expunged.

If enacted, the proposed change will make it harder for a person with a criminal history to take legal action and protect themselves if they were evicted or denied access to housing solely on the basis of their record. 

The vast majority of people currently incarcerated will eventually return home to their communities, and there are millions of people living in our neighborhoods now who are struggling to overcome the ongoing consequences of their conviction. We should be helping people along pathways to success, not creating new barriers in their way. A safe home is a key component of a meaningful second chance. 

The proposed rule is in direct conflict with the goals of the First Step Act, which was passed in December, as well as the widely accepted principle that we need to create more second chances for people with criminal records. 

We urge HUD to withdraw the proposed rule, and instead, continue to build on our collective progress towards creating a justice system that elevates our communities and makes them safer.”

Endorsing Organizations:

• Association of Prosecuting Attorneys
• Association of State Correctional Administrators
• Center for American Progress
• The Council of State Governments Justice Center
• JustLeadershipUSA
• National League of Cities
• National Legal Aid & Defender Association

Many of us think of Artificial Intelligence as technology more likely to appear in science fiction films than show up in our communities.

But in practice, the term is used to describe any computational technologies capable of producing reasoned or “intelligent “outputs. It is already with us, spreading quickly through the world as AI realizes its commercial potential.

From recommending music you might like or helping pick a romantic partner, to following the spread of pandemic contacts, individuals and governments alike are increasingly trusting AI to predict, classify and detect things in many spheres of our lives.

While there is broad public acceptance of the use of such tools in shaping what we buy, who we date and what shows we watch, the use of AI in criminal justice remains fraught and contentious.

In thinking about how AI might change things, it’s important to note that many existing risk assessment tools are already based on simple forms of AI. Existing tools have drawn scrutiny over concerns that they may produce biased outcomes and in turn result in biased decision making.

Our new report, The Present And Future Of AI In Pretrial Risk Assessments, produced with the support of the John D. and Catherine T. MacArthur Foundation, outlines some important questions criminal justice decisionmakers ought to consider when contemplating adopting an AI-based pre-trial risk assessment tool.

For example, some basic questions that pertain to current-day risk assessment tools are:

• What exactly are the models predicting?
• Does the process for obtaining the inputs for risk assessment tools respect the rights and dignity of the accused?
• Are there racial, ethnic, gendered, or any other relevant disparities in the model’s predictions?

As more complex AI comes online for use in pre-trial risk assessment, it will be subject to many of the same critiques and concerns that have been raised about current versions of the programs. In most cases, we believe the issues with the current tools will be magnified by the new data sources and more complex model-building approaches that are to come, marketed as AI.

More questions than answers are likely to arise as we move forward. For example, if surveillance-based inputs for AI come online, are they derived from unevenly distributed surveillance systems? Do those systems fail differently for different groups of people? Do AI tools broaden the definition of unacceptable pre-trial behaviors, or widen the net of those eligible for pre-trial supervision or detention? Does the data contain any information that was obtained via legally or ethically questionable methods? Does collecting data to administer the assessment in the future require any morally objectionable or overly invasive procedures? Is the model understandable? Are the gains in predictive accuracy sufficient to offset the loss in interpretability?

In wrangling with these difficult questions, agencies will want to engage with their communities and with technical experts to be sure that the hype and promises marketed by developers of AI do not distract from the overall goals of vastly reducing pre-trial detention and eliminating racial disparities in the criminal justice system.

—Alexandra Chouldechova is the Estella Loomis McCandless Assistant Professor of Statistics and Public Policy at Heinz College, Carnegie Mellon University

—Kristian Lum is  an Assistant Research Professor, Department of Computer and Information Science, University of Pennsylvania

The Decision Points blog series explores the seven key decision points during the typical criminal case where choices can be made to reduce jail populations.

“In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” These words, penned by Chief Justice Rehnquist in the majority opinion of United States v. Salerno, should be the principle that guides each and every determination of bail and condition of pretrial release. But for far too long, in jails and courtrooms across the nation, our criminal system has failed to adhere to this Constitutional principle.

Four of the first ten amendments to the Constitution establish protections against the power of the criminal justice system in order to ensure each person is treated fairly, but the reality of today’s system is that it often does not adhere to the highest law of the land. And with nearly 12 million jail admissions and $22.2 billion in local corrections spending annually, we have a system that is as ineffective as it is unconstitutional and unjust. The 6th and 8th amendments are important starting points to address the crisis in our local jails, where America’s incarceration problem begins.

The 6th amendment gives each criminal defendant the right to an attorney, including at the initial court hearing when the judge sets the bail amount, but that right is often not reflected in practice. While you may have the right to an attorney, quite often, one will not be provided to you.

The right to counsel is an important check on a system that has overused and misappropriated jail to the detriment of our entire society. Defenders are the only stakeholders in the criminal system whose ethical and legal obligation is to argue for release and alternatives to jail for the client. Providing meaningful defense representation at the initial appearance before a judge, when bail is almost universally addressed, can have a profound impact on the rest of the criminal case trajectory and potential for lasting systemic change.

The 2001 landmark study of the Baltimore City Lawyers at Bail Project demonstrated the tremendous impact of counsel at initial bail hearing by showing that, when compared with similarly situated clients without representation, clients with defense counsel at bail were:

• Two and a half times more likely to be released on their own recognizance;
• Four times more likely to have bail amount reduced, with the average bail reduction six times greater than reduction for those without counsel; and
• Twice as likely to be released on the same day of arrest.

The 8th amendment prohibits the setting of excessive bail, defined as an amount greater than that necessary to assure a person’s return to court. However, bail in most jurisdictions is set without considering the person’s financial means and therefore can be excessive to the defendant. Representation at initial hearing before a judge is required by the 6th amendment. But failing to provide counsel at the time of bail hearing to help to ensure that bail is not excessive also violates the constitutional obligation set by the 8th amendment. Indeed, some may argue that money bail in any amount is excessive, because research and practice have shown that money bail is no more effective to assure return to court than unsecured bonds, which do not have to be paid unless the defendant fails to appear.

As jurisdictions around the nation reevaluate how their local justice systems operate, including the twenty participating in the MacArthur Foundation’s Safety and Justice Challenge, they should consider the impact of providing meaningful defense representation at the initial appearance before a judge. The practice of implementing changes to ensure that competent counsel is provided to every defendant may be practically difficult, requiring legislative and court rule change, funding realignment, and political will. But the solutions themselves are clear and have been embedded in the principles of this nation since its founding. For a nation conceived in liberty should most fiercely protect the freedom of the unconvicted, presumed innocent under law. To fix the system and deliver justice: follow the Constitution.

This post originally appeared on Medium.com.