The year is 2054. For the first time in recorded history, Washington, D.C. is completely murder-free. This version of the future is possible because city police use three prescient humans (called "Pre-Cogs") to identify individuals who may commit homicides and arrest them before they follow through with the act. Arrestees are then placed into permanent suspended animation.
That’s the premise of the 2002 blockbuster movie Minority Report. Tom Cruise plays John Anderton, the head of the city’s Precrime Unit, who is himself forced to flee after he’s implicated as a murder suspect. Only after one of the Pre-Cogs indicates a possible disagreement with the other two over Anderton’s culpability can he demonstrate his innocence.
I thought of Minority Report in the immediate aftermath of this month’s election, when I learned that California voters had rejected an initiative to end the centuries-old practice of “cash bail” and replace it with computer algorithms to determine whether criminal defendants should be released pending trial.
In a cash bail system, criminal defendants are sent to jail pending trial until they can come up with a payment to the court, in an amount determined by a judge. The funds are returned at the conclusion of the criminal proceedings. But if a defendant doesn’t show up for trial, the money is forfeited – and the presiding judge will generally issue a bench warrant for their immediate arrest. The amount of bail imposed depends on the defendant’s previous criminal record and the severity of the crime or crimes that are alleged, among other factors.
Wealthy defendants generally have no problem coming up with cash bail. For instance, when media mogul Harvey Weinstein was arrested for rape, his lawyer handed over a $1 million check to ensure he stayed out of prison as long as possible.
If you can’t afford bail, in some cases you can convince a “bail bondsman” to pay it for you. You’ll need to come up with an up-front fee for this service, typically 10% (sometimes more) of the entire bail amount. This charge is nonrefundable. To secure the bail amount’s balance, the bondsman will require collateral – pledging of a vehicle, a home, or other valuables.
In theory, the purpose of bail is to make sure the defendant returns to court. But in practice, bail is actually applied in an across-the-board, mechanical process that keeps poor people behind bars for months or sometimes even years before their trial. In many cases, there’s little or no evidence these prisoners will fail to appear for their trial or that they pose a danger to the public. Hundreds of thousands of people are detained in this manner each year, mostly for non-violent offenses.
The current cash bail system pressures poor people into the trap of accepting one-sided plea bargains. Research shows that criminal defendants who don’t have the ability to pay cash bail are three times as likely to be sentenced to prison than those who do.
In other words, you’re innocent until proven guilty – but only if you can pay.
Civil liberties advocates have long criticized the cash bail system and have brought numerous challenges over it to court. But in 2019, the Supreme Court rejected a challenge to Georgia's cash bail system. Thus, it’s up to individual counties, cities, and states to reform their cash bail system. Several states, including Alaska and New Jersey, already encourage judges not to automatically set bail based on the severity of charges a defendant faces. Other court systems, notably Harris County, Texas (which includes Houston) and Philadelphia, have mostly eliminated cash bail in minor cases – and aren’t experiencing an increase in defendants skipping their court date.
Understandably, judges are often reluctant to cooperate in such efforts, especially those whose appointment must be reconfirmed by voters. They’re the ones who will be held accountable if a defendant they released without bail, or with nominal bail, reoffends pending trial – or flees.
Which brings us to the bail reform law that California voters rejected. The California Assembly passed SB 10 in August 2018. It largely replaced the cash bail system with an assessment tool to determine if a criminal defendant would reoffend pending trial or was a flight risk. But in an unprecedented coalition, the bail bond industry and civil rights advocates teamed up to gather more than 500,000 signatures to force a referendum on the law (Proposition 25). They were successful: more than 55% of California voters rejected the idea.
Bail bondsman didn’t like SB 10 because it would put them out of business. And civil rights advocates opposed it because the risk assessment tool amounted to a Minority Report-style “precrime” system. They pointed out that such algorithms would worsen discrimination against racial minorities, since they’re arrested at higher rates than white people. That’s proven to be the case in New Jersey, which replaced bail with a risk assessment tool in 2017. While that’s reduced the number of prisoners stuck in jail pending trial, racial disparities have persisted.
In 2019, more than two dozen academics, researchers, and artificial intelligence experts prepared a study concluding that the assessment tools used to evaluate flight risk failed to accurately measure pretrial risk. Another study found that these tools could actually worsen discrimination against racial minorities.
One well-known risk assessment tool is Palantir Technologies’ Gotham system, which the Los Angeles Police Department and other police agencies use to identify potential criminals. Gotham works by assembling massive amounts of data on local residents, including more than one billion pictures of license plates taken at traffic lights and toll booths in and around Los Angeles. It then attempts to “connect the dots” to identify possible relationships that might help identify an offender. However, these relationships aren’t proven and may be only potentially relevant. Plus, it’s easy to misinterpret relationships the system identifies as evidence that someone is or might become an offender.
In Minority Report, the character played by Tom Cruise eventually succeeded in clearing his name and the Precrime Unit is disbanded. Let’s hope the effort to reduce cash bail use focuses on the real objective: to require it only if a criminal defendant poses a genuine flight risk or a real and present danger to the community. And not devolve into a Precrime scenario where potential offenders are surveilled or even detained based on a biased risk assessment.