Lawmakers in California are pushing for bail bond reform before the end of the year. State Senator Bob Hertzberg introduced Senate Bill 10: The California Money Bail Reform Act, back in 2017. The bill is designed to eliminate cash bail in California and replace it with a system of “pretrial evaluations” and recommendations to the court regarding an individuals eligibility for release without bail or whether they should be required to remain behind bars until their trial is held.
California is not the first state in the Union to try to replace cash bail with another system. So far, Arizona, Kentucky, New Jersey and some counties in other states are trying out systems very similar to what SB10 is proposing for California.
New Jersey Bail Reform
In New Jersey, the old cash bail system has been replaced by an algorithm that tells enters a numerical score for any past offenses or risk factors. The algorithm then renders a risk score to the judge, who is responsible for making a decision, about whether or not to release an individual on their own recognizance, or whether to hold them over for trial.
NBC News reported on a 20-year old father, pulled over for a traffic violation and arrested for a gun that was locked in the glove department. The young man, who claimed to have no knowledge of the gun's existence, didn't have any charges on his adult record, though he had plead guilty to sexual assault as a teenager. The formula used by the algorithm had taken the previous charge into account and rendered a score for the judge that the young man was not a flight risk or danger to the community and should therefore be released on his own recognizance.
However, prosecutors disagreed, prompting a second hearing so that the prosecution could attempt to persuade the judge that releasing the man would be too dangerous and he should be held over for trial and not allowed to walk free. In the end, the judge agreed with prosecutors and the man was held over for trial, with no option for release.
Whether this will have been the right decision or not remains to be seen. It's possible that the young man posed a serious risk to the community and should be held until trial. Or, it's possible that he could have worked and supported his children until his trial could be held, reliably fulfilling his obligation to the court system. Perhaps we'll never know. What we do know is that, even if he had been released, he would have been held behind bars long enough for two hearings regarding release, which is longer than he would have been held, had he been able to post bail within hours of his arrest.
Public Safety Assessment System
In New Jersey and a few other places around the country, traditional bail has been replaced by a system known as the Public Safety Assessment. PSA, as it is also called, is a mathematical algorithm that assigns a numerical risk level to defendants based on a variety of factors including past criminal behavior. The algorithm is designed to help judges better gauge the risk posed by a defendant prior to trial.
Development of the PSA
The pretrial risk assessment tool uses data from 1.5 million pretrial cases drawn from more than 300 jurisdictions from across the nation. Researchers used the data to identify factors that they felt best predicted whether a defendant would commit a new criminal act (NCA), commit a new violent criminal activity (NVCA), or fail to appear (FTA) in court, should they be released before trial.
There are nine primary risk factors used to determine a relationship between the identified risk factors and pretrial outcomes:
- Age At Current Arrest
- Current Violent Offense
- Pending Charges At The Time Of Current Arrest
- Prior Misdemeanor Conviction
- Prior Felony Conviction
- Prior Violent Conviction
- Prior Failure To Appear In The Past Two Years
- Prior Failure To Appear Older Than Two Years
- Prior Sentence To Incarceration
The factors are then assigned points, according to the relationship between that factor and poor pretrial outcomes. Then, the mathematical algorithm of the PSA calculates a score for each outcome and it is rendered as a recommendation to the judge.
Is The PSA More Fair Than Previous Evaluation Systems?
It is interesting to note that some factors that could indicate risk for future offenses are disregarded by the Public Safety Assessment system as these same factors are seen to stand as proxies for race. Things like a person's arrest history and number of misdemeanor convictions are excluded from the predictive algorithm because they are seen as being unfairly weighted against minorities.
The judge can still take other factors into consideration, however, and the prosecutors are able to bring additional evidence to the judge encouraging either release or remand.
In New Jersey, there is a 48-hour time limit for the judge to render a release decision.
Is Bail Reform Working in New Jersey?
It has been just over a year since the New Jersey Bail Reform Act wen into effect. It is still too early to determine whether the overall affect will be positive or negative.
Fewer People Behind Bars In New Jersey
There is no doubt that there are currently fewer people in jail, awaiting trial, than New Jersey has had in years. According to the New Jersey Courts Report To The Governor released by the New Jersey Courts in February of 2018, New Jersey is currently housing 20 percent fewer pretrial prisoners, compared to the start of 2017, and 35 percent fewer pretrial prisoners, compared to January 2015. It is unclear as to whether the savings on incarceration will outweigh the cost of implementing the new system. It is also too early to determine the affect of the new system on the safety of the community and the effectiveness of trial compliance.
Dangerous Criminals Released With No Accountability
In New Jersey, prosecutors, law enforcement officers, and members of the public are complaining about people who are being released after being charged with gun crimes, who flee police, are charged with domestic violence and sex charges, and the rate of those people who continue to be rearrested. In two separate cases, people were killed by defendants who were released after the Public Safety Assessment deemed them to be a low risk to the community.
“We were seeing cases of firearms defendants, plainly dangerous, not being detained, and we saw people offending, being released and re-offending, sometimes within a day, sometimes three or four times,” said Elie Honig, director of the state Division of Criminal Justice was reported as saying by NBC News. “I've seen these and gone, 'How can that possibly be?'”
A single mother in Newark reported being burgled twice in two months by the same person. The police had arrested him the first time, only to see him immediately released on his own recognizance. He had more than a dozen felony convictions on his record, and yet he'd been allowed to walk free. After the second burglary, prosecutors tried to get the judge to keep the man behind bars, but he was released, yet again. Only after being arrested for even more burglaries was the judge finally convinced to keep the defendant in custody.
Can The Public Safety Assessment System Be Manipulated To Force Guilty Pleas?
Civil rights advocates and defense attorneys in New Jersey are accusing prosecutors of exploiting the new system to gain convictions. Many people, detained after their arrest despite having been given a low risk score from the PSA, go on to plead guilty to lesser charges, just to obtain release from jail. They understand that without a guilty plea, they will simply continue to wait behind bars until their trial. By the time a trial can be held, even if a person is found innocent, they may have lost their job or custody of their children, things that could have been avoided had cash bail been available to them.
“Tweaking The System”
People upset by the killing of two people, in two separate incidents in New Jersey, after a defendant was released despite gun charges, have led to a call for “tweaking” the system to give more weight to any gun related charge and make those defendants be automatically remanded to custody until trail. The system in New Jersey has already been “tweaked” in this way when it comes to any kind of sex assault accusation.
Civil rights advocates and public defenders oppose the tweaks, saying that they undermine the algorithm's objectivity. They point out that while there have always been people who go on to recommit crimes after being released from jail, it was no reason to assume that a few cases meant that everyone who fit that category should be treated as if they, too, would commit those crimes.
“Anyone can pick out a non-random selection of cases and come to the conclusion that the risk-based system is flawed,” said Joseph J. Russo, public defender in Hudson County, New Jersey. “That would be a fundamentally erroneous conclusion to reach. You also have to realize that individuals are presumed innocent until proven guilty. Sometimes we forget that.”
The PSA Could Hurt The Very People It Is Designed To Help
Mustafa Willis, an outspoken proponent of New Jersey's bail reform, was arrested in Newark on gun charges in 2010. Because he couldn't afford bail, Mustafa spent four months behind bars before he was able to get a bail reduction and help from relatives to post bail and get out of jail.
Once he was out of jail, Willis was able to prove that the gun had been planted by police. Understandably upset by the bail system, Mustafa was recruited as a spokesman for the bail reform movement and testified before the State Senate's Law and Public Safety Committee in 2014, helping to spur action on bail reform.
It is ironic to consider that, had he been arrested with the current Public Safety Assessment program in place, he might have been held without any chance at bail, because his charges were gun related.
Massive Infrastructure Required To Implement PSA In New Jersey
Implementing the new Pretrial System in New Jersey has been no small task. The New Jersey Court's Report To The Governor outlines the massive undertaking. New judges were hired to handle the increased case load of pretrial release hearings, in addition to 267 new government employees to manage and operate the Pretrial Services Program.
In order to meet the 48-hour deadline for release decisions, judges are working six days a week to oversee the release hearings.
The cost and logistics of overseeing the electronic monitoring of some defendants posed problems for the state. As of December 2017 New Jersey had spent $784,017 on monitoring devices and oversight alone. In addition to the direct cost, significant resources were required to address “non-compliance” with electronic monitoring.
New Jersey System Going Broke
So far, the State of New Jersey has invested about $46 million to implement the new Pretrial Service Program, with additional expenses paid by individual counties. The state's part of the implementation was supposed to be funded by court fees paid by convicted individuals. However, the New Jersey Court Report to the Governor revealed that revenue collection for the fiscal year was down over the previous year. In addition, they reported that the expenses for the Pretrial Services Program would exceed the revenues expected in 2018 and that funding the system through the collection of court filing fees would not be sustainable. They requested additional funding from the state at an “appropriate level” to maintain “stable and dedicated” funding of the program.
In spite of the extraordinary cost of implementing the program already, the Courts requested additional services and funding to assist those on pretrial release with their ongoing mental health, housing and substance abuse issues. These are some of the same expenses that were to be saved by not housing so many pretrial prisoners in the county jails. Now, those savings won't be realized, but will simply be transferred to other facilities, as methods are found to provide the services and oversight required by pretrial defendants.
New Jersey Take Away
While proponents of bail reform are claiming victory in New Jersey because of a reduced pretrial prison population, the conclusion is not so clear cut. Those who claim that cash bail was biased in favor of white, wealthy defendants are pleased to see more people released without bail. However, is the public interest being served? Is it a financially sustainable program? Only time will tell.
Past Bail Reform In The United States
This isn't the first time states in the US have tried to find an alternative to their cash bail system. In the 1960s anti poverty crusaders moved to reform the national cash bail process on the premise that bail was unfair to the poor. In 1966, the Federal Bail Reform Act was passed, containing provisions that all but did away with money bail, altogether.
According to a report by Pretrial.org, the 1966 Act contained the following provisions:
- A presumption toward releasing non-capital offenders on their own recognizance;
- Conditional pretrial release with conditions imposed to reduce the risk of failure to appear;
- Restriction on money bail bonds, which the court could only impose if other, non-financial, option were not enough to ensure the defendant's appearance;
- A deposit of money bail option, allowing defendants to post a 10 percent deposit of the money bail bond amount with the court in lieu of the full amount of the bail required;
- A review of bail bonds for defendants detained for 24 hours or more.
1966 Federal Bail Reform Act: Everybody Walks Free...
In effect, the 1966 Federal Bail Reform Act provided that all defendants, not being held on capital offenses, should be released on their own recognizance. The only aspect that a judge was allowed to consider in determining a defendant's pretrial release conditions were his or her flight risk, and nothing else.
Even those charged with a capital offense, or those who had been convicted and were awaiting sentencing were to be released unless the judge believed them to be a danger to society or thought that they might flee. (Capital offenses are defined as those crimes that are so serious that the death penalty may be considered an appropriate sentence.)
...Unless You're In D.C.
It wasn't until 1970 that Congress began to address a defendant's “danger to the community” when considering the conditions for release. After criticism from the District of Columbia and the Nixon administration, congress voted to change the 1966 ACT as it applied to persons charged with crimes in Washington, D.C.. The District of Columbia Court Reform and Criminal Procedure Act of 1970 allowed judges in D.C. to consider the defendant's threat to society, along with flight risk, when determining release conditions in non-capital cases.
This sparked a debate across the nation about whether the danger to the community ought not to be considered as a factor for all defendant's when a judge made a decision about pretrial release.
Crime Rose As A Result Of The 1966 Federal Bail Reform Act
The 1970s saw an increase in crime across the nation. A new debate was born, this time focused on a concern for public safety and crime. The debate was especially heated over the subject of crimes committed by people who had already been charged with a crime and then released on their own recognizance. Various states began instituting laws that required judges consider the safety of the community when setting pretrial release conditions.
Bail Reform Act 1984
During the 1970s, various states began instituting laws that required judges consider the safety of the community when setting pretrial release conditions. However, congress didn't address the issue until 1984, when it pass the Comprehensive Crime Control Act of 1984.
As money bail once again began to be used to ensure the behavior and appearance of defendants awaiting trial, crime dropped but jails began to fill up. There is disagreement about whether the increasing jail population, especially as it relates to pretrial defendants, serves to protect the community good or is simply due to some defendants being unable to pay financial bail.
Crime Dropped Following The Bail Reform Act of 1984
In The Impact Of Money Bail on Jail Bed Usage (American Jails, July/August 2010), John Clark presented Bureau of Justice Statistics showing:
- (1) jail populations, especially of pretrial inmates, have continued to rise as crime as gone down;
- (2) the growth of the pretrial inmate population is being driven by the use of money bail.
The author, John Clark, concluded that reliance on money bail needed to be reduced as a way to reduce inmate populations. However, an argument can be made, and often is, that the reduction in crime is directly related to the number of people being held behind bars, rather than on the street where more crimes could be committed.
Is Money Bail Effective?
Michael K. Block examines this question in a 2005 report entitled The Effectiveness and Cost of Secured and Unsecured Pretrial Release in California's Large Urban Counties: 1990 – 2000. Michael Block, Ph. D. is a Professor of Economics and Law at the University of Arizona. The study looked at U.S. Bureau of Justice Statistics data for California's large urban counties from 1990 to 2000, in an effort to analyze the effectiveness and cost of the two types of pretrial releases.
In analyzing data from over 20,000 cases, the study found that:
- Defendants released ROR (Released on their Own Recognizance) was 60% more likely to fail to appear for a scheduled court appearance than a defendant that was released on a surety bond (money bail).
- Defendants who failed to appear for a court appearance was 2 ½ times more likely to remain a fugitive if he or she was released ROR than if he or she was released on a surety bond.
These figures make it clear that the proper use of money bail has a positive effect on pretrial outcomes, specifically in California.
Bail Reform Unnecessary in California
In California, the State Supreme Court has already instructed judges to consider a defendant's ability to pay when setting bail. In addition, pretrial agencies already exist in nearly every county in the state. It would be redundant and wasteful to do as Hertzberg and Bonto are proposing in SB10, in completely overhauling the current bail bond system.
Proposed Bail Reform Too Costly For The People Of California
The system that is being proposed in place of the bail system, would require huge outlays of resources from a state government that is already struggling to pay the bills. According to the analysis released by the Assembly Appropriations Committee, the state would have to spend “hundreds of millions of dollars” to establish and administer the new pretrial program. In addition, the state would also face the expense of court-appointed lawyers for the defendants, to the tune of hundreds of millions of dollars. Some civil groups have estimated the cost to the State of California to be more than 6 billion dollars before it's all said and done.
Advocates for the change insist that savings will be seen by the reduced expense of keeping fewer people behind bars. However, it is unclear how many people will be declared “safe” to release on their recognizance and how many will be considered too much of a risk and will remain behind bars until trial.
No On SB10
You can let your state representatives know that you oppose bail reform by calling or emailing their offices.
