The liberal dream of smart detention? Algorithms and the politics of pretrial detention in the US states

• Published date: 01 October 2022
• Author: Georg Wenzelburger,Pascal D. König
• Date: 01 October 2022
• DOI: http://doi.org/10.1111/lapo.12197

ORIGINAL ARTICLE

The liberal dream of smart detention? Algorithms and

the politics of pretrial detention in the US states

Georg Wenzelburger

1

| Pascal D. König

2

1

Institute of European Studies, Saarland

University, Saarbrücken, Germany

2

Department of Social Sciences, TU

Kaiserslautern, Kaiserslautern, Germany

Correspondence

Georg Wenzelburger, Comparative European

Politics, Department of European Studies,

Saarland University, Campus C5 3, -D66123

Saarbrücken, Germany.

Email: georg.wenzelburger@uni-saarland.de

Funding information

Volkswagen Foundation, Grant/Award

Number: Az. 95 438

Abstract

In the 2000s and 2010s, US states have seen an impor-

tant wave of change in criminal justice policies toward

a“smart on crime”approach. In this context, several

states have rolled out algorithmic risk assessment tools

for statewide use in pretrial decisions, whereas some

others have not, and still others are moving back from

using such tools again. The present article examines the

explanations for this variance. To this end, it tests com-

peting expectations about the role of functional pres-

sures, including fiscal strain and the party-political

balance of power. The findings show that functional

pressures, policy diffusion, and politics affect the likeli-

hood that algorithmic tools will be used in criminal jus-

tice. Democratic control of both the state executive and

legislative branches increases the likelihood that a state

will use these tools, indicating that Republicans are

reluctant to leave the “tough on crime”paradigm

behind and to advance the “smart on crime”approach.

1|INTRODUCTION

The United States has a long tradition of using risk assessments in criminal justice (Taxman &

Dezember, 2016) in order to inform decision-making at the pretrial stage, in corrections, and in

sentencing. Although the adoption of actuarial tools for assessing risk in the US criminal justice

system began in the 1930s (Harcourt, 2007), there have been intensified efforts to advance the

use of computerized tools since the early 2000s as part of a broader trend toward justice reform

and “smart on crime”strategies (König & Krafft, 2021; Mayson, 2018; Percival, 2016). This has

been observable especially with regard to pretrial release decisions. Not only have many

counties adopted or revised pretrial risk assessment instruments, but some states have moved

toward a statewide and standardized implementation of such tools—and some much earlier

DOI: 10.1111/lapo.12197

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Law & Policy. 2022;44:325–347. wileyonlinelibrary.com/journal/lapo 325

than others (for the situation in 2019, see Figure 1). More recently, however, several states have

halted the roll-out of tools (e.g., Iowa and Idaho) or have even repealed the use of pretrial

assessment tools (PRATs) that had already been introduced (e.g., in Alaska in 2020 and in

Utah in 2021)

1

(Hutson, 2021; König & Wenzelburger, 2021).

Given the variance over time across US states, the present article addresses the question of

how these differences in criminal justice policies can be explained. Hence, we work to shed light

on the drivers of a major trend in US criminal justice policy during the 2000s and 2010s. Our

article contributes to a broader literature on the ebbs and flows of mass imprisonment in the

United States (Enns, 2016; Garland, 2002; Gottfredson & Moriarty, 2006; Gottschalk, 2016).

Law and order policy in the United States has been marked by a “tough on crime”stance at

least since the late 1960s, with both Democrats and Republicans campaigning on this issue in

almost every election campaign since 1968 (Enns, 2016; Miller, 2016; Simon, 2009;

Tonry, 2007). However, this policy of “mass incarceration”(Gottschalk, 2006) has led to

skyrocketing costs in the criminal justice system and increasingly louder calls for a change of

course in criminal justice policy (Dagan & Teles, 2014; Gottschalk, 2010; Green, 2015;

Schoenfeld, 2016). These calls have been closely connected to a new paradigm in criminal jus-

tice policy. Seemingly transcending the opposition of “soft on crime”and “tough on crime,”the

more recent “smart on crime”strategy

2

has served as a buzzword for penal reform that enables

policy-makers to achieve de-carceration without being seen as lenient on crime and endangering

public safety (Altheide & Coyle, 2006; Dagan & Teles, 2016; Fairfax, 2010; Green, 2015;

Mayson, 2018; Percival, 2016).

An important prerequisite for adopting the “smart on crime”strategy has been the possibil-

ity of relying on more advanced risk-assessment tools as a cornerstone in a broader move

toward greater use of actuarial methods in public administration and criminal justice

(Coglianese & Ben Dor, 2020; Hannah-Moffat, 2019; Rothschild-Elyassi et al., 2019;

Tonry, 2019). The use of PRATs is presumed to enhance evidence-based decision-making

because these tools are created via statistical analyses of empirical data intended to identify pre-

dictors of pretrial outcomes. Using statistical evidence, PRATs help decision-makers in the jus-

tice system to differentiate between offenders with higher or lower risks of re-offending or

FIGURE 1 States that have implemented PRATs for statewide use (2000–2019). Alaska repealed the legislation

for the consistent state-wide use of a PRAT in 2019. Darker shading represents earlier introduction, with dates

of introduction ranging from 2003 (Virginia) to 2018 (e.g., Rhode Island). See Supporting Information

Appendix Table A.1 for details.

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