JERSEY CITY, N.J. On the ground floor of a deteriorating county courthouse, in a room outfitted with temporary office furniture and tangles of electrical wires, a cornerstone of Americas criminal justice system is crumbling. It took Americans to make bail into a big business. Risk assessment refers to a tool to help predict a defendants risk of failing to appear for court and rearrest. This all occurs while people are presumed innocent under the law. Across the country, people are recognizing that overreliance on cash bail doesnt work, and its ruining lives. Beyond the sheer numbers are the personal stories of those who have suffered as a result of the money bail system. Others that began using it in 2017 include Harris County, Texas, and Cleveland, Ohio. And it remains unclear whether the new approach will reduce racial disparities, drive down crime rates or be fiscally sustainable. They argue that such tools can help courts better achieve the goal of reducing pretrial detention, without a rise in failures to appear in court or risk to public safety. But its also become clear that data is no wonder drug. The shared goal of reforming bail is to get rid of the wealth-based pretrial system and to do this without a significant increase in crime or failure to appear in court. Take a position: What would a just (fair) pretrial bail system include (or exclude). Defense lawyers and civil rights advocates, meanwhile, say people who pose little risk have been ordered detained, only to be given plea deals or had their charges dropped a sign, they fear, that authorities are exploiting the new system to generate convictions. That led her to New Jersey, where she authored a study on jail populations that became a centerpiece of the campaign to end bail. First, I believe race should never be a factor in determining what a person's bail should be. Many are held due to lack of alternatives or because they cannot afford to pay a bail fee. She predicts that it will increase the number of those held in pretrial detention and further entrench racial and economic disparities. The Arnold Foundations own analysis of the PSA in Lucas County, Ohio, found that the arrest rate of pretrial defendants dropped from 20 percent to 10 percent, and that black and white defendants were released at similar rates. Court officials say the early numbers show the new process is already working: people who arent dangerous are not being jailed solely because they cant afford bail, and dangerous people arent being released even though they can afford to pay. The young father who said he didnt know the weapon was in the car has nothing on his adult record, but he pleaded guilty to sex assault as a juvenile. But can data fix it? Moreover, we should evaluate closely what we criminalize, decriminalize widely, and invest instead in community-based alternatives to incarceration. But when a person cant come up with the bail money and a 2017 Federal Reserve report found that 4 in 10 Americans couldnt cover an unplanned $400 expense theyre forced to stay in jail until their court date. The judge has a few different options. Of those people, 88. Release On Own Recognizance, the formula tells the judge. Reference Oakes, B., & Fleming, W. (2018). The current wave of reform seeks to reverse the swing toward detention, and correct the systems frequent failure to determine who poses the greatest risk. For example, recent analysis of bail decisions in New York City from FiveThirtyEight shows that the chance of being assigned cash bail varies wildly between 2 and 26 percent for misdemeanors, and 30 to 69 percent for felonies depending on which judge happens to be overseeing a court on a given day. America has struggled with the fairness of pretrial detention since the earliest days of the republic, when the protection against excessive bail was written into the Eighth Amendment of the Constitution. Pre-trial detention undermines the chance of a fair trial and the rule of law. Reform Act of 1966.2 The new federal system relied extensively on a pretrial release agency investigation and supervision and guaranteed legal representation to indigent defendants. People sitting in jail while awaiting trial on low-level charges are more likely to be black and Hispanic. But in the 1800s, as people had trouble finding personal sureties, courts shifted to the use of secured money bail. After decades toiling on the outskirts of criminal justice reform, she has found herself in high demand. The most dramatic example was the death of Christian Rodgers, shot in South Jersey in April, allegedly by a man whod been released a few days earlier on a gun possession charge. November 9, 2021 by Best Writer. Whats more, bail bond agencies can charge high interest rates on their loans, go after a customers loved ones for payments, and attach any requirements they want (such as wearing ankle bracelets or taking a house as collateral) to guarantee their investment is recouped. Perhaps because of the abuses tied to commercial bail bonds, theyre legal in only two countries: the US and the Philippines. Rather than cash bail, the state is giving judges the broad discretion to detain people and using algorithm-based risk assessments to determine if people should be held with no hope of being released at all. Toovey assumed the burglar was stealing to support a drug habit, and she sympathized. Since the founding of the country theres been bail here, McCallen said. They and their families are also targets for the $2 billion-per-year for-profit bond industry, which routinely exploits people disproportionately people of color in desperate situations. Reforming a status quo in which pretrial liberty depends on whether people facing charges, their families, or friends can afford bail offers the obvious equity benefit of miti-gating the criminalization of poverty. Some states, including Massachusetts, have passed statutes requiring that courts inquire into ability to pay money bail, and others, including Alaska and Illinois, have put restrictions on the cases in which people can be assigned money bail or encouraged courts to use unsecured bail (only payable if the person fails to appear in court). He lost his job and relied on family members to repay his bondsman. That would be a fundamentally erroneous conclusion to reach., He added: You also have to realize that individuals are presumed innocent. Its makers say it has been calibrated to weigh aspects of someones criminal history that have the best predictive qualities in order to minimize bias. Theres also legislation proposed at the federal level, including a bill put forward by Sen. Bernie Sanders (I-VT) and another from Sens. Nearly 11 million people are admitted to jails across the country each year, many because of their inability to pay bail. Proponents of the tools argue that relying on empirical evidence is far better than leaving it exclusively to judges. They point to cases in which defendants have been ordered held on serious offenses such as assault or robbery only to be offered to plead guilty to low-level charges and sentenced to time already served in jail. The PSA very likely would have given him a low risk score. Some say thats unfair. Now theres not a penalty. From an unexpected hurricane and deadly wildfires to migrants flocking to the U.S. border, 2018 was full of big stories with powerful images to accompany them. Black and brown people, their loved ones, and those without the economic resources to thrive suffer the worst harms. Rodgers mother has filed a wrongful death lawsuit against the state, saying the PSA did not do enough to protect him. Celebrating 60 Years of Gideon v. Wainwright, Three Years Later, COVID-19 is Still a Threat to People Who Are Incarcerated, From the Death Penalty to Marijuana, Clemency is a Tool For Justice, Hidden Taxes Don't Belong Anywhere, Least of All in Our Justice System, A New Vision for Pretrial Justice in the United States. The state is one of approximately 40 jurisdictions that has adopted the PSA. But also in the past 15 years, the number of people convicted of crimes has stayed the same. A 2014 report on the bail industry by the state Commission of Investigation outlined a litany of abuses, including cutting deals with hardened criminals who went on to commit more violent crimes. He had a dozen felony convictions on his record. A just pretrial bail system would: -Issue bail depending on someone's financial capability. But its time to do something bold, says Steinberg. Kamala Harris (D-CA) and Rand Paul (R-KY), which include federal support for states in their bail reform efforts. Hed also been arrested on burglary charges weeks earlier, but was released pending trial. The cost to the state for the coming fiscal year is estimated at about $46 million, with additional expenses covered by county governments, who have argued they shouldnt have to pay. One, prompted by the outcry against the release of a man accused of soliciting sex from a girl, led to an appellate court ruling on the handling of sex offenders and defendants juvenile histories. The 10 percent fee is not returned to the person, and bail agents often also require the person (or their friends and family) to sign over collateral to cover the full bail amount. The ultimate decision lies with the judge, but only after hearing arguments from defense lawyers and prosecutors, who must ask that someone be held before trial. But she argues that they have an important role in improving the evidence about who is very likely to return to court and pose little risk to the community. Part of the work of the ACLU (which is working on bail reform in 38 states), JustLeadershipUSA, Color of Change, and many other organizations is also to raise awareness of how millions of people are being incarcerated each year due to inability to pay bail, without being convicted. The poor are far more likely to get stuck in jail, which makes them far more likely to get fired from jobs, lose custody of children, plead guilty to something they didnt do, serve time in prison and suffer the lifelong consequences of a criminal conviction. Further, advocates also point out that an instrument could actually lead to higher pretrial detention depending on the subjective decision of how risky is deemed too risky by the designers of the tool. Many County Jails Dont Provide Voting Access to People Detained: Illinois Prepares for Historic Abolition of CashBail, The Fight to Fix Americas Broken Bail System. This November, California voters face a referendum on ending cash bail, an unfair system that punishes the poor. A second gun charge, also dismissed, added another bondsmans loan. Judges are pushing similar efforts in Maryland, Arizona, and Indiana. It's also the only pretrial risk assessment that flags defendants who present an elevated risk of committing a violent crime if released. Ajustice system that relies on cash bail to determine liberty, without effective alternatives, keeps people in jail simply because they arepoor. The states portion is entirely funded by court filing fees, a fluctuating source of revenue that judges fear will turn out to be insufficient. And in no area is this more evident than in the matter of bail. But it became more common in medieval England. You can disagree with an individual decision, but you cant deny the systemic change, said Glenn Grant, who manages the reforms as acting administrative director of the New Jersey court system. About the author Kate Torgovnick Mayis a writer at TED.com. Being locked up also makes it harder to fight a case. Advertisement Article . Other bondsmen were fighting back, supporting the Rodgers familys wrongful-death claim and, in a second lawsuit, asking a federal judge to force New Jersey to bring back bail. Prosecutors usually do not contest those decisions. I know these people need help, but that has nothing to do with us, Toovey said. In your responses to peers, extend the ideas in their original posts to include nonmonetary release options by proposing alternatives, suggesting changes, or supporting the ideas presented . Theres a lot of momentum around bail reform that advocates believe will translate into further big policy shifts in the coming years. Bail mainly serves to exploit people's money. Narrowly limit who is jailable before conviction. Even the high risk group, as it is labeled in risk assessment tools, has only about an 8 percent chance of being arrested for a new violent crime within six months. I believe there is many changes that need to be made in order to have a fair pretrial bail system. We must completely abolish for-profit bail and for-profit pretrial supervision. Get The Abstract from Arnold Ventures delivered to yourinbox. In the Courts resource section, you identified the reason for having bail, the pros and cons of the current bail system, and its impact on diverse populations. Im proud of being a good-standing licensed bondsman and private investigator. The district attorneys' association endorsed the state task force's other recommendations, which include additional training for judges and funding for pretrial services. If he were in almost any other courtroom in the country, hed be ordered to stay behind bars until he posted bail if he could afford it. It has always existed, and it always worked. A bail bond lender provides funds to cover a person's bail. But because it ties freedom to the ability to pay, its been inherently flawed from the start. In your responses to peers, extend the ideas in their original posts to include nonmonetary release options by proposing alternatives, suggesting changes, or supporting the ideas presented. Include three to five ideas, and a rationale to support your post. There are many specific proposals across jurisdictions, but these are the main elements that advocates tend to agree on: There is, however, a big debate among advocates about how to decide whom to detain pretrial which gets us into the contentious topic of risk assessment.. The number of people behind bars in the United States has jumped more than threefold, to 2.1 million, since 1980, according to the Bureau of Justice Statistics. They argue that the system imposes an enormous and unfair burden on people and their families, especially low-income people of color. The main risk that reformers tend to worry about is not a rise in crime, but instead, as Human Rights Watch puts it, the risk of replacing one harmful system with another. Advocates worry that legislation some states have considered or adopted will have the consequence of giving courts too much leeway in detaining people pretrial, or even encourage them to do so. There are a variety of such tools available, including the Public Safety Assessment tool developed by the Arnold Foundation and the COMPAS tool developed by the for-profit company Equivant (formerly Northpointe). On the same day that prosecutors sought to detain the young man caught with a gun in Jersey City, they did not oppose the release of another young man accused of stabbing someone in a fight. As the story goes, they were working at their fathers bar when they overheard lawyers talking about loaning their clients bail money and charging them fees. They want him locked up. . At the same time, the wealthy can buy their way out of pretrial detention on just about any offense, including murder. There is no perfect system, but this year, there has been significant progress in efforts to overhaul money-based regimes and replace them with afairer, more effective system focused on adefendants risk. Washington, DC, got rid of secured money bail and bolstered pretrial services in 1992; today, it releases 94 percent of those accused of crimes as they await court hearings. Theres also a risk that in lieu of money bail, courts might start to assign a high number of people to unnecessarily onerous forms of supervision, such as electronic monitoring, which advocates argue can be nearly as punitive as being in jail. By the 1960s, advocates were pointing to studies showing that assigning bail was unnecessary: The vast majority of people would return to court if released without paying money bail. 3-1 Discussion: Bail Reform. The ACLU has significant concerns about actuarial algorithms potentially detrimental racial impact, lack of transparency, and limited predictive value. Conversely, the PSAs developers excluded factors that were predictive but also likely served as proxies for race, such as a persons arrest history and number of misdemeanor convictions. What comes next? Algorithms need humans flaws and all to oversee them. By now, maybe, hed be living on his own, and closer to a career in film. Back in the courtroom, the formula has run the criminal history of the man caught with the gun. Bail amounts vary widely, with a nationwide median of around $10,000 for felonies (though much higher for serious charges) and less for misdemeanors (in some places such as New York City, typically under $2,000, though much higher in some jurisdictions). In July 2014, he testified before the state Senates Law and Public Safety Committee, and a month later the new system became law, with a January 2017 start date. In theory, bail and the network of bail-bond companies that provides loans to those who cant pay gives just about anyone the opportunity to remain free while awaiting their fate. But many Americans cant afford the smallest of payments. If you want a 100 percent guarantee that any individual will not commit a crime while out on release, the only way to do that is to lock everybody up, Grant said.
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