Former Judges Believe Replacing Judicial Discretion with Automated Formulas Poses Risk
By Lawrence W. Stirling and Quentin L. Kopp
Recent articles that have appeared in these pages in support of reforming our bail system fail to understand that the controversial choice by the California Judicial Council to recommend California eliminate it and replace it with some algorithm-based computer pretrial system ignores inconvenient facts and heightens the risk to public safety.
Letting a computer make a formulaic decision removes a judge’s authority to obtain in court the facts, determine the risk inherent in letting an accused defendant walk our streets, set bail and apply superior human understanding to evaluate the facts.
As former legislators and retired Superior Court judges, we have worked throughout our careers to ensure protection of the public and victims comes first, by conducting studied and comprehensive reviews and evaluations of all facts known at time bail is set. This judicial weighing includes factors such as past criminal history, flight risk, the potential danger posed to victims, a victim’s family and witnesses, and the seriousness of the charge or charges against a defendant.
Now, an ill-considered recommendation proposed in haste by California Chief Justice Tani G. Cantil-Sakauye, would replace our judicial system with “risk-based assessment” computer programs. Chief Justice Cantil-Sakauye cited as justification examples New Jersey and New Mexico, two states that, “instituted sweeping reforms to limit or end money bail.”
What Chief Justice Cantil-Sakauye and the Judicial Council omit is that, in both New Jersey and New Mexico, these “risk-based assessment” programs have caused such havoc in the criminal justice system that members of both political parties now seek to repeal the damage their poor choices are causing.
This past month, New Mexico Gov. Susana Martinez asked lawmakers to repeal and replace a constitutional amendment approved last year to adopt a “risk-based assessment” program similar to the one recommended by Chief Justice Cantil-Sakauye on behalf of the Judicial Council.
Besides real-life criminal justice problems facing in New Jersey and New Mexico, transferring a judge’s evaluation process to some computer algorithm would be a catastrophic mistake. Computers are only as logical as their programs’ authors, and ironclad algorithmic rules are unable to determine defendants’ character, weigh the tone and demeanor of their statements or infer from the statements provided by the alleged victim or witnesses the harm and damages sustained.
While modern artificial-intelligence and expert-system technologies are advanced beyond their reliability decades or even years ago, all still have significant error and uncertainty rates which, when applied to the real world, mean mistakes and errors will be made. There remains significant uncertainty about what a machine-language program has learned and how it will act when dealing with actual defendants in real judicial cases based on simple or complex crimes.
While such programs might be useful in advising a human judge, they ignore that each individual and case is unique. These decisions require human experience. A vital element all artificial intelligence fails miserably to demonstrate is the very-human emotion of empathy — including empathy for the defendant.
In deciding whether the opinion of the Judicial Council or a far larger group of experienced prosecutors, bail agents and Superior Court judges matters most, we must ask ourselves a simple question: “Would I, facing a court that can hold me or release me for an accused crime, prefer to plead my case to a human being or to the blinking cursor of a computer screen?”
We should remember and consider carefully the devastating experience in New Jersey, New Mexico and other locales where “risk-based assessment” programs are being used. We should especially listen to reports of experts in those jurisdictions familiar with the problems their no-bail systems are creating.
Lawrence W. Stirling is a former San Diego City Council member, served four terms as assemblyman for the 77th District. He was elected to the state Senate followed by an appointment by Gov. Deukmejian to the bench as a judge. Quentin L. Kopp is a former 15-year member of the San Francisco Board of Supervisors, served 12 years as state Senator for San Mateo County and San Francisco. He was appointed by Gov. Pete Wilson as a San Mateo County Superior Court judge in 1999.