Risk Roulette: How Lawyers Make Pretrial Risk Assessment Tools Matter in Criminal Court

To date, jurisdictions in all but 4 states have begun using pretrial risk assessment tools (RATs) to help judges determine which defendants should be incarcerated as they await trial (Mapping Pretrial Injustice, 2020). Heralded as a solution to the inequities produced by cash bail (Harris, Evans, and Beckett 2010) and the harms that even a single day in jail can produce (Smith, forthcoming), risk assessment tools are algorithms that use defendant characteristics to predict the likelihood of various pretrial outcomes such as failure to appear to court dates and new criminal arrests. Recent scholarship suggests that these tools may reproduce inequality because street level bureaucrats are imperfectly adherent to the recommendations of these tools, using them in somewhat unanticipated ways (Brayne 2020; Brayne and Christin 2020a; Angèle Christin 2020). While some quantitative research examines how state- and county-level factors influence judicial adherence to RATs, little work has examined how other actors in the courtroom working group may themselves influence judicial decisions. To fill this gap, this work examines how lawyers mobilize risk assessment tools to create new legal strategies, advocate for their clients, and influence the decision making of judges. Using primarily qualitative data from New Jersey,this work argues that attorney arguments are necessary for understanding how judicial decisions are made in the context of algorithmic recommendations.