Rep. Sarah Lightner (R-Springport) introduced a bill in the Michigan Legislature designed to eliminate discriminatory factors from the pretrial risk assessment tools used by judges to help decide whether a defendant should be kept in jail pending trial.

Pretrial risk assessment tools use computer algorithms to score a defendant’s risk of failing to appear or committing a new crime based on specific factors, and then make a recommendation on the defendant’s bail or other conditions of release. Lightner’s plan would force full transparency on the exact construction of the assessment tools and the way they are used during the criminal justice process.

“Pretrial risk assessments were meant to be additional tools at the disposal of a judge exercising judicial discretion,” Rep. Lightner said. “They were never meant to be a substitute for a judge’s decision-making process.”

The use of pretrial risk assessment tools has been heavily criticized nationwide over the past two years, with concerns of validity and partiality topping the list of issues. In 2018, more than 100 civil rights groups, including the NAACP and ACLU, called for complete transparency of the tools – citing grave concerns over racial predisposition that was hard-baked into their construction. Last year, more than 80 online organizations including Google and Facebook called for greater transparency of the tools. In addition, 27 prominent academics from across the country recommended jurisdictions cease using risk assessment altogether, arguing that the algorithms were fundamentally biased and beyond repair.

“It is crucial that any tool used is proven to be impartial,” Lightner said. “With this legislation, we are taking a significant step to rein in these algorithms by putting the onus on those building and using them to prove to the public that they are not inherently skewed or biased against anyone for any reason, including gender or race.”

Lightner’s legislation, House Bill 5464, comes as the Michigan Supreme Court initiates a risk assessment tool. The high court’s version was built without regard to transparency, and the judiciary has thus far refused requests from the public to audit, inspect or otherwise test the algorithm.

Rep. Lightner’s bill also addresses the key issue of the protection of the fundamental right to due process of criminal defendants. HB 5464 would prevent anyone from asserting trade secret exemptions or other protections to prevent the disclosure of how an assessment tool is built.

“All parties in criminal cases must be allowed behind the curtain of these proprietary algorithms so that justice may be truly served,” Lightner said.

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