By Jennifer Lux, Senior Consultant, Penelope Fergison, Senior Consultant, and Carrie Coen, Associate Director, Justice

INTRODUCTION

In the current landscape of criminal justice reform, the spotlight is on ensuring fairness and equity during the pretrial phase of legal proceedings. At the forefront of this discussion is California’s Senate Bill 36 (SB 36), a groundbreaking piece of legislation aimed at reforming the use of pretrial risk assessment tools in the state. This blog post delves into the essence of SB 36, underscores the importance of conducting local validation studies on pretrial risk assessment instruments, and explores the impact of validation studies on fostering a more just legal system.

UNDERSTANDING SENATE BILL 36

SB 36 (2019) and companion legislation, such as Senate Bill 129 (2021), and judicial decisions, such as the California Supreme Court case, In re Humphrey (2021), represent a progressive step toward rectifying the practices surrounding pretrial detention within the framework of utilizing risk assessment tools to ensure defendants are released in a timely and safe manner that is not contingent upon their ability to afford bail. Pretrial risk assessment tools predict the likelihood that a defendant will reoffend or fail to appear in court if released before trial.

SB 36 requires all agencies conducting pretrial risk assessments to validate their chosen tool at least once every three years with standard statistical methods to measure the tool’s ability to accurately predict a defendant’s risk of committing a new offense or failing to appear in court. SB 36 also requires validation studies to measure any racial, ethnic, or gender biases in risk assessment tool accuracy. Furthermore, all agencies are required to make validation results publicly available.

THE IMPORTANCE OF LOCAL VALIDATION STUDIES

Local validation studies required by SB 36 offer an opportunity for all pretrial service agencies to tailor risk assessment models to community-specific characteristics while meeting their obligations to release eligible defendants safely and efficiently. Here’s why local validations are imperative:

1. Accuracy and adaptability: Validation studies ensure that risk assessment tools are not just generic applications but are adapted to reflect local contexts, improving their accuracy and ensuring their cultural sensitivity.
2. Fairness and equity: The essence of justice lies in its equity. By thoroughly evaluating and adjusting these tools for local populations, any potential biases that may have existed when the pretrial risk assessment tool was developed can be identified and corrected, ensuring a more equitable pretrial process.
3. Evidence-based decisions: Local validation enables decisions based on robust, empirical evidence, thereby improving the quality of judicial decisions and ensuring a fairer justice system.

Previous pretrial risk assessment validations conducted by the California Judicial Council and RDA Consulting have assessed the local accuracy of nationally developed tools such as the Ohio Risk Assessment System Pretrial Assessment Tool (ORAS-PAT) and Arnold Ventures Public Safety Assessment (PSA). Overall, these studies have shown that pretrial risk assessment tools accurately predict risk and assist in determining pretrial supervision levels in California.

THE IMPACT OF SENATE BILL 36: BEYOND LEGISLATION

The enactment of SB 36 paves the way for a more thoughtful approach to pretrial risk assessments, with implications that stretch beyond the confines of legislation:

• Promoting justice reform: SB 36 and its companion legislation serve as a blueprint for other states and jurisdictions, illustrating the importance of localized, evidence-based approaches in legal reform efforts.
• Building community trust: SB 36 helps rebuild trust between the justice system and the communities it serves by ensuring fair pretrial risk assessment tools fit local demographics and by requiring that validation results are publicly available.
• Encouraging continual evaluation: As the legal system and the communities they serve evolve and change over time, requirements to validate pretrial risk assessment tools regularly ensure agencies are engaged in an ongoing process of validation and recalibration to ensure its tools consistently meet community needs.

CONCLUSION

California’s Senate Bill 36 is not just legislation; it’s a commitment to enhancing the fairness and integrity of the pretrial process through the localized validation of risk assessment tools. In recognizing the unique fabric of each community, SB 36 sets a precedent for utilizing data-driven, empirical methods to ensure justice. It calls upon stakeholders to critically evaluate and continually improve pretrial practices, paving the way for a more equitable legal system. Embracing the tenets of SB 36 requires a collective effort from legal practitioners, policymakers, and the community to ensure that pretrial risk assessment tools serve as examples of fairness and equity in the justice system. As other jurisdictions look to California’s example, the lessons learned from implementing SB 36 could have far-reaching implications for criminal justice reform nationwide.