Despite Nevada Governor Sandoval vetoing legislation to implement the pretrial “risk assessment” statewide because it was “unproven” with “no conclusive evidence pretrial risk tools will work” – Justice Hardesty moved forward with the Nevada Reno-Model…now a proven failure.
by Jeff Clayton, Executive Director, American Bail Coalition
If you Google how a bill becomes a law in Nevada, you’ll notice it is very similar to every other State: the legislature passes legislation which may become law with the consent of the Governor of the State. The power to make laws indeed belongs to the legislature, which includes important judgments about the use of computers and big-data tools to evaluate the risk of defendants for purposes of bail, plea, sentencing, parole, probation, and pretrial services. This legislative power also includes the power to regulate the use and scope of such algorithms in criminal justice, including rules related to anti-discrimination, effectiveness, and transparency.
In the 2017 legislative session, Justice Hardesty of the Supreme Court encouraged the legislature to mandate the use of new criminal algorithms in bail setting in Nevada. The legislature instead passed legislation to allow rather than mandate the use of new so-called risk assessment tools, which Justice Hardesty said was unnecessary because he was going to just issue a court rule.
On May 26, 2017, Governor Brian Sandoval vetoed legislation that would have allowed for judges to consider a risk assessment, saying instead that risk assessment algorithms are a “new and unproven method” and that “no conclusive evidence” has been presented that such pretrial risk tools work.
Justice Hardesty, however, had already moved forward anyway. A pilot project was started in Reno in November 1, 2016 in order to begin to implement the substantive criminal law changes recommended by a committee – which Hardesty chaired. The bail schedule was eliminated because on the premise that it was just not fair to the poor, now ensnaring everyone in jail until the state can run you through another computer.
Of course, the tripartite goal was to simultaneously reduce failures to appear, reduce new crimes, and of course reduce jail populations. Remember, money bail it is alleged costs communities more in terms of mass incarceration, does not reduce crime, and has no impact on whether someone shows up for court.
Even before the data was available, on December 4, 2017, Justice Hardesy already had made up his mind: “It has really been more successful I think than what we had anticipated.” Of course, the reality is, the data had been published in a monthly newsletter since April of 2017. Then, on December 23, another article discussed the favorable results of the pilot program, although the Director of the program noted that the numbers do not really back it up.
So, we obtained the data, and the Director is right—the program is not a success. It is a failure by the measures they put in place to evaluate the success of the program.
As to the tripartite goals of the program:
- Failures to appear in court went from 8% in July of 2016 to 18% in July of 2017 (a 125% increase).
- New crime on bail went from 3% in July of 2016 to 6% in July of 2017 (a 100% increase).
- The average daily jail population did not change as a result of the pilot project. Also, it’s important to note that pretrial services has doubled its supervision efforts at the cost of the County to deliver these not-so-excellent results.
Since then, Hardesty and his pals have fired up the spin-machine. Now, the success of the program has a single new measure: “to see that we do have just the right people in jail and nobody else.”
We are not sure how to measure this, but it makes clear what we have been saying all along—this is all about class-war talking-point justice and some mythical bipolar false construct that we can properly identify the right and wrong people using a static, check-box algorithm.
Instead, what we did learn is that by their own measures developed over a long period of time in Justice Hardesty’s committee, Governor Sandoval had it right: this just wasn’t going to work.