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Dozens of county and state courts in the U.S. are trying to move away from an all-cash bail system. Critics say that setup is arbitrary and unfair to poor people. One alternative that's gaining use is a risk assessment algorithm created by a former hedge fund manager. But a recent murder case in San Francisco raises questions about its effectiveness. NPR's Eric Westervelt reports.
ERIC WESTERVELT, BYLINE: In the dawn hours of this past July 16, Edward French, a film scout and avid photographer, was on "Twin Peaks," the famed San Francisco hillside with its panoramic views of the hometown French loved. As he always did, French had his camera with him. Brian Higginbotham was French's partner. He was in court for a plea hearing in French's murder.
BRIAN HIGGINBOTHAM: He knew beautiful places. He was trying to catch the sunrise coming up Sunday morning.
WESTERVELT: That's when it is alleged 19-year-old Lamonte Mims and 20-year-old Fantasy Decuir robbed French of his camera and shot him with a handgun. A nearby jogger heard the gunfire, called police and administered CPR. It was too late. Seventy-one-year-old Edward French was soon dead.
HIGGINBOTHAM: I'm still kind of in shock.
WESTERVELT: Both Mims and Decuir entered not-guilty pleas. Lamonte Mims was already on felony probation when police arrested him again this past July 4, this time for gun possession and parole violations. But San Francisco Superior Court Judge Sharon Reardon released Mims on July 11. She followed the recommendation of what's called a Public Safety Assessment, or PSA score, a computer-generated score that's now used here and in many other cities to help calculate whether a suspect is a flight risk or is likely to return to court. French's partner, Brian Higginbotham, calls judge Reardon's decision insane.
HIGGINBOTHAM: I mean he's violated two probations. He was a convicted felon. And he had a gun charge just five days before the murder of Ed French. It's absolutely crazy. I think the judge has to be held accountable.
WESTERVELT: The pre-trial score system was created by the foundation of billionaire John Arnold, who ran a successful hedge fund. Nine risk factors are plugged into the risk assessment tool, including criminal history, age and current charges. It then spits out a score for a judge to consider. The Arnold Foundation, which has given the tool to cities for free, calls it reliable, predictive information about the risk that a defendant released before trial will commit a new crime or fail to return to court. In the case of Ed French, the algorithm failed.
ERIC SIDDALL: It just underscores the problem of having some type of algorithms making these types of determinations.
WESTERVELT: That's Los Angeles Deputy District Attorney Eric Siddall. He's vice president of the union representing LA's deputy DAs. That city doesn't currently use this computer tool, and Siddall hopes it stays that way.
SIDDALL: It's very hard for a judge to go against this type of risk assessment program because it's couched in science. They don't want to be overturned. They don't want to look like they're being capricious. So if there is an algorithm that says keep them out of custody, they're going to follow what the algorithm says.
WESTERVELT: The head of the nonprofit that runs this assessment tool for the San Francisco Sheriff's Office tells NPR a staffer may have miscalculated the number of days Mims had previously spent in jail, creating a faulty score recommending Mims be released. But the judge also had the suspect's rap sheet, underscoring Siddall's point that the algorithm likely carried too much weight. A spokeswoman for the city's superior court declined to comment on the case or the use of the pre-trial algorithm.
Reform advocates say the score system is working. There are thousands of low-income defendants, they point out, not convicted of a crime who get locked up for months or even years while they wait for trial because they can't afford bail. Estimates range from 14 percent of the jail population in Los Angeles to nearly 40 percent in New Jersey. San Francisco's head public defender, Jeff Adachi, says the assessment tool is an imperfect-yet-positive step forward.
JEFF ADACHI: The entire debate we're having in this country around bail reform is primarily because people are now kept in custody based on how much money they have. And instead, this risk assessment looks at other factors. Is it a perfect tool - by no means. Is it a better tool than simply money bail - absolutely.
WESTERVELT: The Arnold Foundation says it's currently studying the tool's impact in the nearly three dozen counties where it's being used. The foundation's Matt Alsdorf says the bail industry is unfairly using this and other cases to try to keep its grip on a lucrative, antiquated system.
MATT ALSDORF: These tragic incidents are being used by a vested interest to try to return to a money bail system that is simply not effective, creates massive injustices. And it doesn't protect the public effectively.
WESTERVELT: But Lorrie French, sister of Ed French, says the tool's failure in this case should leave people questioning the algorithm and judges who put too much stock in it. The judge is as responsible for my brother's death, she said, as the people that murdered him. Eric Westervelt, NPR News, San Francisco.
(SOUNDBITE OF PORCAS BORBOLETAS SONG, "ANINHA")