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| Madeline Carter |
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| Alison Shames |
Their sense of urgency is driven by the fact that our nation's jails are filled with people charged with low-level offenses who are detained because they are unable to meet nominal financial conditions of release and not because they were likely to fail to appear in court or be arrested for another offense. Meanwhile, many of the very small proportion of people who may, in fact, pose a threat to community safety often pay their money bond and are quickly released.
Because of this inequity, jurisdictions are moving to reduce or eliminate their use of financial conditions of release. In their place, they are establishing systems where judges, not money, decide whether someone is detained before trial. In some cases, they are using pretrial assessment tools to help identify those who can safely remain in the community with — or, in many cases, without — supportive pretrial services.
A growing body of evidence shows that when jurisdictions make release decisions based on research rather than on a person's ability to pay financial conditions, the outcome is fairer and more equitable, and does not negatively impact community safety and well-being.
However, research-informed pretrial decision making is far less lucrative for the bail bond industry. That is why organizations such as the American Bail Coalition have launched misleading attacks on bail reform and pretrial assessment, including in a recent Law360 guest article.[1]
So let's look at the facts.
The Current System
The status quo of relying on financial conditions undermines the public interest in every respect. First, it is expensive, with local jurisdictions footing an estimated $14 billion annually to keep people in jail before trial.[2]
Second, it is unfair. Financial conditions of release for Black men are 35% higher than for white men charged with the same crimes and with the same criminal histories. For Hispanic men, financial conditions are 19% higher than for white men.
Third, the current system does a poor job protecting the public. It allows the release of people who are most likely to cause harm to society — simply because they can find the resources to pay their bond — and detains a large number of people who would otherwise appear in court and remain law-abiding if they were released.
Indeed, research shows that keeping people in jail who do not need to be there results in higher rearrest rates once they are released. That is because incarceration often leads to loss of jobs, housing and other stabilizing factors in people's lives.
These realities lead us to ask two key questions: What is going wrong? And, what can we do to fix it?
What Is Going Wrong?
The fundamental problem with how we determine who should be released and who should be detained before trial is not that judges are making the wrong decisions; it's that they often aren't being asked to make those decisions at all. Instead, because our system defaults to using financial release conditions in the vast majority of cases, it is frequently someone's money — or lack of money — that determines whether they remain in jail before their case is resolved.
Most jurisdictions rely on financial conditions of release. This means that if a person has access to sufficient funds to pay the financial conditions set by a judge — conditions that are often determined by a fixed bail schedule — the person is released. If the person does not have access to sufficient funds, they stay in jail. This might — and often does — result in the release of people with $50,000 bonds who pose a threat to community safety and, conversely, the detention of others with $500 bonds who could safely be released.
No decision maker desires these results. But they are all but inevitable when a system is built around financial conditions of release.
What Can We Do to Fix It?
The first step in solving a problem is recognizing it. Unfortunately, the American Bail Coalition and other opponents of pretrial reform do not acknowledge the profound issues with the current system. It's not hard to see why they take this approach: The bail industry profits from the current system to the tune of $2 billion a year.[3] But no one else benefits — least of all the communities of color that pay the most for this unfair and ineffective system.
That is why the bail industry is virtually alone in defending America's heavy reliance on money bonds to decide release.[4] Everyone from prosecutors to defenders, from law enforcement organizations to the American Civil Liberties Union, have called for the reduction — if not outright elimination — of financial conditions of release.[5]
So, while the bail industry is working hard to maintain the status quo, the rest of us are working to reimagine a pretrial justice system that maximizes fairness, equity, efficiency and safety. That is what the movement to reform pretrial release practices is all about.
The objective of those working on this issue — including our initiative, Advancing Pretrial Policy and Research — is to achieve fair, just, effective pretrial practices, every day, nationwide. This includes a focus on seeking to eliminate the disparities in the current system and involving both key decision makers as well as the communities most affected by crime and incarceration in the process.
An actuarial pretrial assessment can play a positive role in this transformation. Organizations such as the American Bar Association, the Conference of Chief Justices, the National Association of Pretrial Services Agencies and the National Institute of Corrections all endorse the use of pretrial assessments as part of a comprehensive overhaul of the pretrial system.
To prop up the current system, the Law360 article by American Bail Coalition Executive Director Jeffrey Clayton made a number of misleading or outright false claims about assessment tools and reform efforts.
First, it asserts that these instruments are not transparent. However, the most widely used tools — including the public safety assessment, the Virginia pretrial risk assessment instrument and the Ohio risk assessment system — have been publicly available, online or in print, for years.
Second, the article implies that all assessment tools rely on racially discriminatory factors, such as ZIP code, education level or home ownership. But many tools, including the Public Safety Assessment, include none of these factors. Moreover, the system ABC supports — one based on the use of financial conditions of release — relies exclusively on one of the most racially biased factors of all: income.
Third, the article argues that assessment tools will either make decisions for judges or be ignored by them entirely. Neither is the case. In jurisdiction after jurisdiction, decision makers use the assessment results to help inform their decisions about release. The tool helps increase transparency and improve consistency in decision making from one system stakeholder to the next.
Everyone who is genuinely committed to improving the pretrial system is also committed to advancing racial equity. A number of civil rights groups have raised concerns about assessment tools because the nature of an actuarial assessment is that it uses historical data to predict future outcomes. And, due to the cumulative impact of systemic racism, which has resulted in more people of color being disproportionately caught in the net of the criminal justice system, bias is endemic to criminal justice data.
All data-driven efforts must grapple with that bias. However, absent the use of an actuarial pretrial assessment, the status quo is a system that is based on a person's wealth and decisions based upon the judge's professional judgment alone.
While an actuarial assessment can't fix racial bias in the pretrial phase, when used responsibly, it can enhance pretrial decision making. It can make decisions more consistent and more transparent. And it offers an opportunity to document and evaluate pretrial decisions.
Indeed, many jurisdictions that are part of these initiatives are undertaking significant data collection and research efforts to ensure that the assessments they adopt are racially neutral, that the impacts of their reform efforts are fully transparent, and that, unlike the current money-focused system, there is accountability. Results of these efforts are being studied and will be released publicly.
New Jersey — which implemented comprehensive pretrial reforms across the state in 2017, including the use of the PSA and the near elimination of financial conditions of release — exemplifies the fact that substantial advancements are possible. After implementing these changes, the state's pretrial jail population has declined by 24.4%.[6]
By focusing exclusively on pretrial actuarial assessments, opponents ignore the bigger picture of research that supports a comprehensive approach to pretrial transformation.
It's an approach that examines the entire pretrial system, including policing and law enforcement practices, pretrial release and detention decision making, and charging and plea practices. It's one that advocates for effective legal representation for those accused of crime, and provides people who have been harmed with support and an opportunity to be heard. And it steadfastly pursues strategies that increase the safety and well-being of communities while adhering to the fundamental principles of the law.
In other words, a pretrial actuarial assessment is just one component of this broader systemic change.
Ultimately, the question for all of us is whether we find the status quo — of heavy reliance on financial conditions, significant racial disparities in detention, and few benefits to community well-being — to be acceptable, or whether we think a better system is possible. We think it is.
Update: This article has been updated with a more recent figure on New Jersey's pretrial jail population decline.
Madeline Carter is a principal and Alison Shames is a senior associate at the Center for Effective Public Policy.
Disclosure: The authors are co-directors of the Advancing Pretrial Policy and Research initiative, which is involved in the implementation of the types of pretrial risk assessments discussed here.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Also see a more recent article on pretrial assessments here and statements on the coalition's website here.
[2] https://www.prisonpolicy.org/blog/2017/02/07/pretrial_cost/#:~:text=Pretrial%20detention%20costs%20%2413.6%20billion%20each%20year%20%7C%20Prison%20Policy%20Initiative&text=HELP%20US%20GET%20YOU%20THE,conversation%20about%20ending%20mass%20incarceration.
[3] Selling Off Our Freedom: How insurance corporations have taken over the bail system, May 2017, https://d11gn0ip9m46ig.cloudfront.net/images/059_Bail_Report.pdf.
[4] See mission statement of the American Bail Coalition stating that it is dedicated to protecting the constitutional right to bail and the promotion, protection and advancement of the surety bail profession in the U.S.
[5] See for example: https://fairandjustprosecution.org/wp-content/uploads/2017/09/FJPBrief.BailReform.9.25.pdf; https://www.aclu.org/blog/smart-justice/bail-reform/americas-pretrial-system-broken-heres-our-vision-fix-it; http://www.nlada.org/sites/default/files/NLADA-SJC-reframing-public-defense-toolkit.pdf.
[6] https://njcourts.gov/courts/assets/criminal/cjrreport2020.pdf?c=5Lm.