By Isidoro Rodriguez
Earlier this year, Connecticut Governor Dannel P. Malloy proposed one of the country’s most sweeping bail reforms. Included in a package of legislation billed as “Second Chance 2.0” was a provision that would eliminate bail for misdemeanor offenses, thereby freeing hundreds of inmates awaiting trial in detention because they could not afford bail.
“Every day spent in jail awaiting a court date for these low-risk, misdemeanor offenders means another day that their connections to their communities, families, jobs, and responsibilities are weakened,” declared a fact sheetaccompanying the bill, calling for a “smarter bail bond system.”
The measure failed to win approval in the state’s legislature for 2016, but may be re-introduced early next year.
Nevertheless, reformers say that the Connecticut bill is only the latest example of growing national acceptance of the need for serious changes to a system dating to the nation’s earliest years. Although there have been successive federal efforts at reform, such as the 1966 Bail Reform Act, many states have begun to consider doing away with many aspects of the system altogether.
Organizations such as the American Civil Liberties Union, Color of Change, and the International Association of Chiefs of Police have lined up behind a four-year initiative called 3Days Count, which focuses on three major aspects of bail reform at the state level:
* Reducing the flow of people into jail by reducing the number of arrests and bookings; * Replacing the cash bail system with risk assessment and risk-based supervision; * Restricting pretrial detention to those who are the most dangerous.
Calls for reform have been heard even from conservative states such as Texas, where Chief Justice Nathan Hecht has formed a committee to study whether financial bond can be replaced with an evidence-based screening process, or Arizona, where Chief Justice Scott Bales recently expanded the use of risk assessment tools to all 15 counties.
“Pretrial justice is the lowest hanging fruit on the criminal justice reform tree,” Cherise Fanno Burdeen, executive director of the Pretrial Justice Institute(PJI), which introduced the initiative.
“It is the one issue that we know the most about and where the fixes are technically simple. All that is required is the political will to do so.”
Adding further impetus to reform are well-publicized tragedies.
On June 6 2015, Kalief Browder committed suicide at his parents’ home in The Bronx—less than three years after he was released from the Rikers Island jail complex in New York City, where he had spent more than 1,000 days awaiting trial—almost two-thirds of that time in solitary confinement—on a charge relating to theft of a backpack.
His death became a symbol of the impact of what many reformers and scholars say are systemic flaws in pretrial detention procedures.
Browder was 16 when he was detained at Rikers for suspicion of stealing a backpack. Claiming innocence, he refused the plea deals he was offered and insisted on a trial. But scheduled trial dates were delayed, leaving Browder to sit behind bars until his case was finally dismissed. But he never recovered from the trauma of an extended stay in one of America’s most troubled jail facilities.
He experienced what New Yorker writer Jennifer Gonnerman—and many others—called a “school for suicide.”
The Browder case underlined the frustration of reformers who argue that it’s long past time to address the procedural flaws and oversights that led to Browder’s confinement—and have impacted thousands of other Americans detained even though they have not been convicted of anything—but who can’t afford the cost of bail.
Bail Industry a “Hurdle”?
But reform efforts have often foundered against the strong opposition of the powerful bail insurance industry—which Burdeen calls the one “consistent hurdle” to changing the system. She points out that just 12 insurance companies underwrite 100% of the bail bonds in the United States, amounting to a “billion-dollar industry.”
“It’s no surprise,” she told The Crime Report, “that they have a vested interest in opposing reform in this area.”
The bail insurance industry, however, argues that the Connecticut bill and initiatives such as 3 Days Count undermine one of the key reasons for bail in the first place: ensuring that dangerous individuals are not released.
“One of the main things [reformers] say is that 60% of people in pretrial detention are un-convicted,” says Jeff Clayton, policy director for the American Bail Coalition (ABC), a trade association made up of national bail insurance companies.
“But what they fail to say is ‘un-convicted of the present offense.’”
In fact, he argues, a substantial number of people awaiting trial in detention facilities are not “innocent” first-offenders.
In Connecticut, lobbyists for the bail industry cited figures showing that 77 % of defendants awaiting trial in the state had three or more convictions—and over half had failed to appear in previous cases.
“We have to understand that the issue is much deeper than holding innocent people who can’t afford bail in jail,” said Clayton.
Reformers counter that modern evidence-based approaches to assessing risk are much more effective than applying a one-size-fits-all bail structure.
“Today, bond is set based on charge alone and then raised or lowered depending on risk factors that the judges considers for themselves,” says Burdeen, who believes that predictive algorithms can be used as a tool to better inform a judge’s discretion.
In a process similar to estimating a person’s insurance rate for a new car, these algorithms would create a risk score based on a defendant’s criminal record and background information. That score would then be used to help determine a judge’s decision.
“Professional judgments aided by actuarial science produce better outcomes,” adds Burdeen.
In Washington D.C., where the money bail system was eliminated in the 1990s, predictive algorithms like this are utilized every day. If a defendant is considered low-risk, he or she is released with a promise to appear in court.
Those judged to require more supervision are connected to a pretrial agency, such as The Pretrial Services Agency for the District of Columbia, who formulate release recommendations and provide supervision and services to those defendants awaiting trial.
According to Burdeen, only 15% of the cases are ever referred to a detention hearing where, if they are determined to be too dangerous to be released, defendants are detained pending trial.
“D.C. has wonderful appearance rates, great public safety rates, and their method saves the taxpayer’s money,” says Burdeen.
How Reliable Are Predictive Algorithms?
But Clayton and the ABC point to recent stories, such as those by ProPublicaand The Wall Street Journal that raise questions about the reliability and fairness of predictive algorithms as a tool for criminal justice.
“All of [the articles] are attacking risk-based decision making, predictive algorithms, as discriminatory,” said Clayton.
While Burdeen acknowledges these concerns, she insists that pretrial risk assessment tools, like the ones used in D.C., are tested to make sure that they are both racially and gender neutral and should only be used in conjunction with a judge’s own discretionary methods.
However, in some states, those same judges are choosing to disregard the potential benefits of predictive algorithms entirely. A recent story by theChicago Sun-Times reported that, according to a review by the Cook County sheriff’s office, judges’ bail decisions differed from the risk-assessment guidelines 85 percent of the time.
“One of the key problems with our bond court judges is not just the unwillingness to apply the risk assessments when making their decisions but… that they are not being sufficiently trained and supervised and are not being held accountable,” said Illinois Supreme Court Justice Anne Burke, who pushed for the new system.
In the same story, Pat Milhizer, an Illinois courts spokesman, points to a case in which the assessment system recommended releasing a man charged with gun possession even though he was accused of pointing the gun at someone and pulling the trigger twice, without it firing.
Despite the recommendation, the judge set a significant bail.
Even with training and accountability, many believe that the risk of using predictive algorithms as a criminal justice tool outweighs a benefit that, in the end, simply cannot replace sound judgement.
Another issue that Clayton says falls below the radar is the cost of systems like the one in D.C., which is often so high that most states can’t afford it. In New Jersey, where a bail reform bill was passed that seeks to mimic this system, the collective costs of implementing reform legislation are estimated to reach $50 million in the first year alone.
Not only are systems like this costly, but by removing the money-bail system states will have to preventively detain anyone they want to keep in. In a federal system, this means that cases have to be tried within 75 days, placing even more of a burden on state and local communities to provide the necessary resources to prove a verdict with clear and convincing evidence for every case.
“That’s why bail works, because it is an interim sort of way to have security; and if not, then the person is not released,” said Clayton. “Without it, there’s nothing except preventative detention.”
The bail industry and its supporters add another argument to defend their case, claiming that elimination of the cash-bail system would undermine constitutional guarantees offered to defendants under the Eighth Amendment—which protects citizens from “excessive bail” in addition to cruel and unusual punishment—by effectively leaving individuals without protection from arbitrary court actions.
“We’re fighting over the (meaning of the) Eighth Amendment,” says Clayton.
Reformers counter that Eighth Amendment protections are already undermined by the lengthy delays and inefficiencies which are built into our overloaded and overburdened court system—and with the nationwide costs of pretrial detention exceeding roughly $14 billion, Burdeen says, bail reform is increasingly attractive to resource-strained state governments. .
“The inefficiency and ineffectiveness of money bonds is a huge waste of taxpayer money,” said Burdeen. “And the effects are damaging, both in terms of retaining people who are low-risk and poor, but also providing an escape hatch for people who are dangerous but have means to buy their bonds.”
The bail industry agrees that some changes should be made to the system in order to reduce administrative delays.
“Certain jurisdictions need reforms,” said Clayton. ”There are problems out there. But to focus on the elimination of money really ignores the larger issues.”
However, whether the focus is on money, risk assessment or detention, reform continues to be on everyone’s mind.
“30 years ago you would go to committees on criminal justice and the only people who would show up were police, prosecutors, and defense attorneys,” says Carl Reynolds, Senior Legal and Policy Advisor for the Council of State Governments Justice Center.
“Now, there’s a much broader and representative array of the whole spectrum of opinion.”
A national nonprofit organization serving policymakers at the local, state, and federal branches of government, the Justice Center promotes effective data-driven practices to provide practical solutions to pretrial issues such as bail reform. According to Reynolds, nearly every state they work with is bringing issues such as pretrial assessment, release, and supervision to the forefront of their concerns.
“We are talking about the very front of the criminal justice system,” says Reynolds. “Policy makers need to take an enlightened view of that system and see the link between these very initial stages and the bad results cascading through it.”
Despite this year’s polarized election climate the issue of bail reform continues to bubble up, becoming a major priority for policy makers, advocates, and legislators around the country.