While criminal justice reforms such as marijuana decriminalization and the end of cash bail are good steps, Michelle Alexander warns of emerging “e-carceration” involving electronic monitoring, and risk-assessment algorithms. Risk assessment algorithms recommend who should be jailed and are based on factors correlated with race, class, and existing bias. Proprietary code is harder to challenge than police or judges. Criminal justice reform should not become high-tech management and control.
- Should decisions to jail or release someone be based on risk-assessment algorithms?
- Could e-carceration create entire monitored communities trapped in digital prisons?
- Have we over-incarcerated people in the past 40 years?
In the midterms, Michigan became the first state in the Midwest to legalize marijuana, Florida restored the vote to over 1.4 million people with felony convictions, and Louisiana passed a constitutional amendment requiring unanimous jury verdicts in felony trials. These are the latest examples of the astonishing progress that has been made in the last several years on a wide range of criminal justice issues. Since 2010, when I published “The New Jim Crow” – which argued that a system of legal discrimination and segregation had been born again in this country because of the war on drugs and mass incarceration – there have been significant changes to drug policy, sentencing and re-entry, including “ban the box” initiatives aimed at eliminating barriers to employment for formerly incarcerated people.
Many of the current reform efforts contain the seeds of the next generation of racial and social control, an “e-carceration” system that can be more dangerous and more difficult to challenge than the one we hope to leave behind.
Bail reform is a case in point. Thanks in part to new laws and policies – as well as actions like the mass bailout of inmates in New York City jails that’s underway – the unconscionable practice of cash bail is finally coming to an end. In August, California became the first state to decide to get rid of its cash bail system; last year, New Jersey virtually eliminated the use of money bonds.
But what’s taking the place of cash bail may prove even worse in the long run. In California, a presumption of detention will effectively replace eligibility for immediate release when the new law takes effect in October 2019. And increasingly, computer algorithms are helping to determine who should be caged and who should be set “free.” Freedom – even when it’s granted, it turns out – isn’t really free.
Under new policies in California, New Jersey, New York and beyond, “risk assessment” algorithms recommend to judges whether a person who’s been arrested should be released. These advanced mathematical models – or “weapons of math destruction” as data scientist Cathy O’Neil calls them – appear colorblind on the surface but they are based on factors that are not only highly correlated with race and class, but are also significantly influenced by pervasive bias in the criminal justice system.