A judicial tool, no crystal ball

Pretrial risk assessment should be expanded, not scrapped, advocates say

By MARK LISHERON | December 16, 2021

For all of the outrage, rush to judgment, finger-pointing and recrimination, an influential group of legal experts on both ends of the political spectrum agree that it would be a mistake to make sweeping changes to the front end of the judicial process in Wisconsin because of Darrell Brooks Jr.

The case of Brooks, the suspect in the Waukesha parade attack, has brought into sharp relief the way that judges in the state set bail and, in particular, their use of risk assessment to determine if and when a defendant should remain in jail before trial for the sake of public safety.

There is no consensus on risk assessment. The court systems in just 18 of the state’s 72 counties make use of some form of data-based assessment to decide the risk of a defendant not returning to face trial, committing another crime or both, according to a state Supreme Court Office of Court Operations report.

In one of those counties — Milwaukee — Brooks had been assessed as a high risk of flight and the highest risk to commit a crime after being booked Nov. 3 into county jail on felony charges of recklessly endangering the safety of the mother of his child and bail jumping.

Eighteen days later, Brooks, out on $1,000 bail despite the warning, allegedly drove an SUV through Waukesha’s annual Christmas parade, killing six people and injuring dozens of others.

Brooks, 39, is now in the Waukesha County Jail on a $5 million bail. Milwaukee County District Attorney John Chisholm has apologized for mistakes made by an assistant DA with both the risk assessment and the setting of what he called an “inappropriately low” bail.

Both sides have rushed to the ramparts to defend the current system or, as the conservative website Wisconsin Right Now did, apportion blame to Chisholm and at least half a dozen other judicial officials, including Milwaukee County Chief Judge Mary Triggiano, “who failed to protect us.”

Predictably, lawmakers have begun calling for action. State Sen. Van Wanggaard (R-Racine) and state Rep. Cindi Duchow (R-Delafield) want to amend the state constitution to toughen up the bail system.

Their joint resolution is identical to one that Wanggaard filed in 2017 and similar to one that he filed two years later. Scott Kelly, Wanggaard’s chief of staff, told the Badger Institute that the call for a statewide vote to amend the constitution has in the past warned off Assembly members, but he was confident that the Brooks case would renew interest in reform.

Balancing public safety, defendants’ rights

Proponents of risk assessment think the Brooks case will demonstrate the value of pretrial risk assessment in striking a balance between public safety and the protections of liberty guaranteed someone innocent until proven guilty in the Constitution.

Jeremiah Mosteller, the senior policy analyst for criminal justice at Americans for Prosperity, a grassroots advocacy group based in Arlington, Virginia, says he thinks Wisconsin should consider passing a law that would require risk assessments statewide.

Any law on the issue would have to address the criticisms of risk assessment raised by the Brooks case, Mosteller says, but it would help prevent similar horrific events in the future by giving every judge and prosecutor in the state a neutral analysis of someone’s risk that is not affected by personal opinions. Such a system also would have the advantage of shared databases for criminal background checks. However, it would require buy-in on the part of judges and prosecutors, and the results of such assessments must be available to the defense, he says.

“The position of Americans for Prosperity has been that properly implemented risk assessments are better than the alternative given their ability to provide judges with more information about the likelihood of someone committing another crime or fleeing,” Mosteller says. “Still, there does appear to be a lack of consensus among judges in Wisconsin about whether they have the ability to use such tools under current law. What we don’t know is do the judges in the counties that don’t use them not want to use such a tool, or do they not have the resources to implement them?”

Wisconsin is years behind in a movement toward risk assessment that has accelerated in the last five years, according to Advancing Pretrial Policy & Research (APPR), an advocacy nonprofit. Risk assessment began growing in popularity a decade ago, and nearly 30 states have passed risk assessment laws, according to the National Conference of State Legislatures.

Nearly two-thirds of all judicial jurisdictions across the country use a pretrial assessment tool, according to the APPR study.

Milwaukee, Dane and several of the other most populous counties in Wisconsin use risk assessment. Milwaukee County has been contracting for risk assessment services since 2012. Its current contract, costing $3.6 million a year, is with JusticePoint, a Milwaukee-based nonprofit that provides risk assessments, including the one done for Brooks, and a variety of other pretrial services.

JusticePoint also has contracts with Adams, Dodge, Portage, Racine, Rock, Sawyer and Washington counties, according to its website.

While there are several vendors, each with its own methods, risk assessments assign values to personal and criminal history, cross-referenced to the history of a defendant to make court appearances.

JusticePoint’s system works on a scale of one to six, with six being the highest risk. Brooks’ report said his risk of failing to appear before a judge was a four; his risk of committing another crime while awaiting trial was a six. According to a Milwaukee Journal Sentinel article, the assessment also said Brooks “is diagnosed with a serious and persistent illness in which he is not receiving treatment for.” Details of the diagnosis were redacted, the newspaper said.

In remarks made before the Milwaukee County Board, Chisholm outlined mistakes made by the assistant DA who recommended the $1,000 bail for Brooks. He said the assistant did not have access to the risk assessment.

Chisholm later told the Journal Sentinel that Cedric Cornwall, the court commissioner who approved the bail, and Carole Manchester, the prosecutor for the earlier felony charges, should have had access to the assessment. Chief Judge Triggiano has reassigned Cornwall from criminal to civil and family court cases indefinitely.

All of the interested parties also had the Wisconsin Circuit Court Access, a website that with a simple search shows roughly two dozen felony and misdemeanor entries for Brooks, going back to 1999 when he was 17. While Brooks went for years at a time without being arrested in Wisconsin, he had arrest and court records during those periods, local newspapers in Utah, Nevada and Georgia found.

When prosecutors in the Christmas parade case went back to his Nov. 3 arrest, they discovered that Brooks had been accused of running over his girlfriend’s leg, requiring her to go to the hospital.

The long criminal record, the bail jumping, the alleged vehicular attack on a woman. How could any judicial system fail to see what was coming on Main St. in Waukesha? No one can, with any real precision, Dane County Circuit Judge Nicholas McNamara told the Badger Institute. McNamara, who has studied criminal recidivism in New York, warns that risk assessment is an actuarial guide, not a window into the future.

In the first case before him in 2009, McNamara set a low cash bail that allowed the release of a man who had languished in county jail for at least two months awaiting trial. Eight hours after his release, the man returned to jail after stabbing his brother.

Judges and court commissioners, despite the best evidence before them, will make mistakes, McNamara says. The data he compiled for his study of risk assessment in New York showed that overwhelmingly defendants released as low risks were indeed low risks and that a very small percentage of high-risk defendants committed violent crimes after release, he says.

The human factor in risk assessment

In a 2019 study of risk assessment titled Milwaukee Courts’ Data-Driven Debacle, the conservative MacIver Institute reviewed the cases of 556 defendants determined to be of high risk and made bail in 2017. Of those, 86 (15.5%) missed a court appearance, 63 (11.3%) committed a new crime and 17 (3.1%) committed a new violent crime, according to MacIver.

Those numbers can be zeroes only in a system that locks up everyone accused of a crime, and the Wisconsin constitution will not allow that. Section Two of the constitution starts from the presumption that those facing trial will be eligible for release “under reasonable conditions designed to assure their appearance in court, protect members of the community from serious bodily harm or prevent the intimidation of witnesses.”

Such a presumption leaves it to the humans, McNamara says. The French philosopher Voltaire, he says, states it aptly: “Doubt is an uncomfortable condition, but certainty is a ridiculous one.”

Risk assessment gives judges, prosecutors and the defense additional information, but it’s limited by who is gathering the information and how it’s gathered, McNamara says. Its validation as a pretrial tool is hampered by a woeful lack of data to support it, he says.

In 2018, Milwaukee County announced that it had hired an outside contractor to study its risk assessment program. When the Badger Institute asked Stephanie Garbo, the court’s judicial operations manager for pretrial at the time about the study she oversaw, she asked for further clarification, but had not responded at the time we published. We could find no evidence that such a study had been completed.

The Access to Justice Lab at Harvard Law School has begun a randomized control trial to study risk assessment impact in Dane County but isn’t expected to complete it until next year.

“One of the problems with risk assessment is that it is marketed with the veneer of science and objectivity,” McNamara says. “But not only are there biases, they are limited in accuracy, almost as much as humans are.”

It’s those biases or perceived biases along racial, social and economic lines that have turned some proponents against risk assessment. For years an advocate, the Pretrial Justice Institute, a nonprofit in Baltimore, now displays a new position statement on its homepage that says, “We now see that pretrial risk assessment tools, designed to predict an individual’s appearance in court without a new arrest, can no longer be part of our solution for building equitable pretrial justice systems.”

In its Case Against Pretrial Risk Assessment Instruments, the institute says, “It is time to put away RAIs and forge an approach that does not perpetuate racial inequality, court involvement, debt or poverty, or create barriers to pretrial liberty and the presumption of innocence.”

Executive Partner Meghan Guevara told the Badger Institute that her organization pivoted because it came to believe that it wasn’t enough to accept a flawed tool that was better than what was being done before.

But like others interviewed for this article, Guevara says the field of pretrial study is hamstrung by the lack of data on risk assessment as a predictor of showing up in court and of the commission of violent crime.

Expansion would bring uniformity

Mosteller acknowledges the lack of consensus on pretrial risk assessment. However, rather than blow up the system, Mosteller says it should be studied to “illuminate the inequality inherent in all prediction,” as pointed out in a 2019 study by Sandra Mayson, now a visiting professor at the University of Pennsylvania Carey Law School.

“Counterintuitively, algorithmic risk assessment could be a valuable tool in a system that targets the risky for support,” Mayson wrote.

Expanding rather than abandoning risk assessment in Wisconsin would bring uniformity to the assessment methods and, through a centralized database, allow for better study of the tool’s effectiveness, Mosteller says.

He also notes that any reforms related to risk assessment must consider the need for effective training on what these tools actually measure and how decision-makers should utilize and interpret their results as only one input into their decision-making process.

While there is no improvement that could predict Darrell Brooks Jr.’s alleged rampage with certainty, Mosteller believes risk assessment is important to the true goal of striking a balance between an individual’s constitutional protections and the public’s safety.

By combining such an assessment with a requirement that judges and prosecutors record their rationale for deviating from its conclusions, Wisconsin will be able to better diagnose real failures in decision-making from truly unpredictable events, he says.

“We think risk assessment is far better than the alternative — simultaneously letting out those who are wealthy and high-risk while unnecessarily detaining those who are poor and low-risk,” he says. “They (risk assessments) are not a silver bullet, but they can help remove some subjective bias and ensure judges have additional guidance beyond their own individual personal experience.”

Mark Lisheron is managing editor of the Badger Institute’s magazine, Diggings.