Judging You (on your own recognizance)

As an HR professional, my legal bona fides derive from attendance at numerous employment law seminars coupled with dedicated (some may some obsessive) viewing of Law & Order over the years. And when I say Law & Order I mean the big three of the franchise: the original (Jack McCoy baby!), SVU, and Criminal Intent. I never had much use for “Trial by Jury,” “LA,” or “True Crime.”  (you had to go look those up didn’t you?) 

I can argue with you all day on the merits of the various and assorted ADAs who have strolled down the hallways of the courthouse. I can also dazzle you with my prowess at using legal and legally adjacent terminology like “trial judge,” “motion to suppress,” and “the Tombs.”  Naturally, when referencing “the Tombs,” I do so with a troubled countenance.

One of my favorite (often nail-biting) moments during the “order” part of any L & O episode is when this exchange goes down in the courtroom:

Defense Attorney “We request R.O.R. your honor.”

ADA: “Objection you honor. The defendant brutally committed heinous crime X. They have no ties to the community, possess a personal fortune of a bajillion dollars and will flee the country with nary a look back at the ghastly aftermath of their crimes!” 

Defense Attorney: “The defendant is committed to clearing their name of these false and utterly baseless allegations and is also the primary caregiver for 3 cats and an elderly aunt.”

The Judge: “The defendant is ordered to surrender their passport. Next.”

*****

R.O.R., as you may know, means “released on one’s own recognizance” and recognizance is defined as “an obligation to do something.”  In the courtroom this generally means the defendant signs a written promise to show up at scheduled court appearances, is able to receive bail without paying a bond, and may have to refrain from certain activities or meet with a probation officer while awaiting trial. 

The judge has complete discretion in this matter and their determination is based on factors such as prior criminal history, the severity of the charges, record of good behavior in the community and ties to the area such as a job or family. Interestingly enough the use of bail algorithms (a statistical tool called “risk assessments”) are increasingly being used across the country to aid judges in their decision-making. This is not without controversy however there is a fairly common concern that racial biases are embedded in the calculation (in turn feeding the machine learning going on behind the scenes) and merely serve to exacerbate existing racial disparities within the criminal justice system. Advocates for the use of these risk assessment tools believe that these tools eliminate human bias; Chris Griffin, visiting professor and research scholar at University of Arizona’s law school, has said “Instead of relying on an “amorphous” impression of a defendant, a judge can look at a defendant’s “demonstrated, empirical, objective risk.”

There are, of course, numerous jokes to be made about how one’s job can be like a prison sentence. (In prison you spend the majority of your time in an 8×10 cell; at work you spend the majority of your time in a 6×8 cubicle). 

Yet I also see similarities to the courtroom wherein we (HR professionals and organizational leaders) are in the role of the judge as we:

  • Hire on recognizance (HOR)
  • Recognize and reward on recognizance (RROR)
  • Investigate and impose discipline on recognizance (IIDOR)
  • Promote on recognizance (POR)
  • Terminate on recognizance (when one fails at their ‘obligation to do something’) (TOR)

And, thanks to all the fancy HR tech out there, we’re using algorithms to make our decisions and removing, bit by bit, the human discretion and decision making on which we used to rely. 

What would Jack McCoy do? 

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