For the past few years, states have been slowly making progress on reforming their criminal justice laws, including throwing out past marijuana infractions, ending solitary confinement for juveniles and recommending significantly less jail time for nonviolent crimes.
Now, bail reform is getting its time in the spotlight — or in the hot seat, depending — as New Jersey marks its one-year anniversary of ending the practice that requires defendants to pay their way out of jail before a trial. (Currently, the state releases low-level offenders to their homes, while others are held for 48 hours; during that time, prosecutors put together a criminal profile that determines if a person will be kept in prison.)
Many lawmakers are taking up similar reform strategies, as overhauling the nation’s bail system also makes for smart across-the-aisle politics in a time of heightened partisanship. Senators Kamala Harris, D-Calif., and Rand Paul, R-Ky., last year introduced a bill that would incentivize states to end or reform their money-bail programs.
Bail was originally intended to motivate defendants to show up for all of their hearings; if they do so, their money is given back to them once their trial is over. But studies have found that posting bail — which can cost tens of thousands of dollars, depending on the crime — is no guarantee that someone will return to the courtroom. In the meantime, defendants arrested for a low-level offense and can’t afford bail often sit in jail for days or weeks, costing them time away from family and their jobs, and costing taxpayers an average of $38 million every day.
Data from a 2016 study conducted in Pennsylvania by Columbia University researchers found that there was no correlation between being released on bail and returning to court. What the researchers did find, however, is that those who couldn’t afford their bail and thus remained in jail were more likely to commit future crimes by almost 10 percent. The study also found “significant evidence of a correlation between pretrial detention and both conviction and recidivism.” In other words, our current money-bail system is one in which a minor offense often leads to more offenses, entrapping low-income people in a cycle of incarceration simply because they’re unable to pay.
What’s more, the Bronx Freedom Fund in New York City, which bails out people without requiring reimbursement, has found that nearly all of the defendants they sponsor do return to court, despite not having a financial incentive for doing so.
“We know that bail does not make people return to court in greater percentages,” says Jonathan Lippman, the former chief judge for the New York Court of Appeals and current chair of the Independent Commission on New York City Criminal Justice and Incarceration Reform. In fact, he says, “The people who return to court are absolutely at the percentages of those [who weren’t required to post] bail at all.”
Lippman, among others, has been a supporter of using algorithms, or risk-assessment models, to decide whether bail should be mandated for a defendant.
Judges in more than half of the nation rely on these models in some way. Inputting data, such as whether a defendant has a criminal record and the zip code where they live, is used to determine how likely it is that the person will later show up in court.
But risk-assessment tools aren’t a perfect panacea, say critics, and their widespread use can still lead to racial or economic biases.
A recent class-action lawsuit filed in Harris County, Texas, concluded that those with money are given preferential treatment when calculating data; for example, the risk-assessment tool used to determine whether or not someone would return for trial gave the same weight to being poor as it did to having a prior offense.
“Under the County’s risk-assessment point system … poverty indicators (such as not owning a car) receive the same point value as prior criminal violations or prior failures to appear in court,” a federal appeals court decided. “Thus, an arrestee’s impoverishment increased the likelihood he or she would need to pay to be released.”
Richard Berk, who created the algorithm currently used in Pennsylvania’s risk-assessment tool, says that it’s a fool’s errand to think that algorithms would create a perfect environment.
“The question is not whether the algorithms are accurate and fair, but whether they are more accurate and more fair than current practice,” Berk said in an email. “So we can reduce errors and reduce bias, which does not mean that the accuracy is perfect and that all possible bias is gone. As they say, we cannot let the perfect be the enemy of the good.”
But as more states take on reforming their bail practices, a uniquely American institution is at risk: the commercial bail-bond industry.
Bail-bond offices put up money for a defendant while typically keeping 10 percent. If defendants don’t show up to court, the bond office gets fined, and a bounty hunter is dispatched to find the missing person.
Though the bail-bond services industry grew by almost 3 percent between 2011 and 2016 and brought in $2 billion in revenue, it’s now facing increasing pressure as some jurisdictions have done away with the need for bail bondsmen altogether by eliminating cash bail.
In New Jersey, for example, bail-bond shops have seen a dramatic reduction in business and are operating under threat of closing. Last summer, reality TV star Duane “Dog the Bounty Hunter” Chapman stood outside a New Jersey courthouse and claimed that the elimination of bail bonds were “killing people.”
But for bail-reform advocates, Chapman’s argument is stale. And like it or not, that reform is coming, as New York, Delaware and California are all looking to eliminate — or at least reconsider — their money-bail practices.
“You have a lot of research to show that bail is harmful. Those points need to be disseminated,” says Zoë Towns, the director of criminal justice programs at the bipartisan advocacy group FWD.us, in response to how reform might affect bail-bond business owners. “Our position on bail reform and justice is looking at how we can drive down incarceration rates, and that may mean that structures within and outside the system need to be changed.”
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An earlier version of this story identified FWD.us as a left-leaning organization, not a bipartisan one. We regret the error.