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Bail Reform: Understanding the Changing Role of the Bail Industry

Starting in 2019, some people accused of crimes in California won’t have to pay a cash bail to be released until their trial. It’s part of a movement known as bail reform. But some opponents, including the American Civil Liberties Union, are crying foul.

According to the ACLU’s Natasha Minsker, California’s attempt at cash bail reform could have the opposite of the intended effect. It increases the likelihood of detention, even for petty crimes. It also does little to safeguard minority defendants from racial injustice.

And their concern is well-founded.

But what is this bail reform movement all about?

What Is Bail Reform?

In a nutshell, the American bail system often imposes financial charge on people accused of crimes. This allows them to get out of jail pending trial. The purpose of bail is to ensure the defendant’s compliance with the terms of release. This includes showing up for the trial among other potential terms. If they comply with the terms of release, they get the bail money back when the trial is over.

Anyone who’s seen Law & Order knows the amount of bail is supposed to be determined based on a variety of factors, including but not limited to:

  • The severity of the crime
  • The defendant’s prior criminal history
  • The likelihood the defendant will pose a danger if released
  • His or her ties to the community (or rather, whether it’s likely they have no reason not to run)
  • Their employment status
  • The likelihood they’ll reoffend

Supporters of bail system reform claim it creates inequities in the system. That is, wealthy defendants can afford to post bail. They also claim lower-income defendants, which are disproportionately minorities, could be stuck in a jail cell because of an inability to pay.

This could negatively impact everything in their lives. They could lose their jobs, be forced to neglect important family obligations and more.

Supporters of bail reform also over-inflate the number of people unable to make bail for financial reasons. But a recent University of Tampa study found that in Florida, under 2 percent of people were stuck in jail for financial reasons.

The bail reform movement favors replacing cash bail with risk-assessment tools. They claim these tools don’t tie a defendant’s release to their finances or race. Or do they?

The Problem With Risk-Assessment Tools

Risk-assessment tools and algorithms don’t directly factor in race or wealth. But they still appear to be bogged down by inherent bias.

The American Civil Liberties Union points out part of the data used is itself subject to racial bias. That includes prior interactions with law enforcement among others. But we know black and Latinx individuals have disproportionate rates of contact with law enforcement. Meaning existing bias in the system could negatively impact a black or Latinx individual’s qualifications for release.

For example, according to a 2013 – 2014 study by ProPublica, one algorithm examined had the following troubling outcomes:

  • Black defendants were often calculated to be a higher risk to reoffend than they were.
  • White defendants were often calculated to be a lower risk to reoffend than they were.
  • Even when they controlled for things like prior crimes, future likelihood to reoffend, age and gender, black defendants were 45 percent more likely than white defendants to get a higher risk score.

Simply put, these risk-assessment tools are only as good as the data that goes into them. And that data may be subject to bias at multiple points along the way.

How Surety Bonds Help Ease the Financial Burden

Surety bonds can’t eliminate bias in the court system. They can, however, ease the financial burden for those who have to post bail.

Surety bonds for bail are a promise both the defendant and the victim will get their day in court. The “guarantor” (the company providing the bond) promises to pay the full bail amount if the defendant no-shows or skips bail as they say on TV.

The defendant only pays about 10 percent of the full bond amount as a fee to the bail bond agent. The agent only pays the full bond amount if the individual fails to meet the bail conditions they agreed to.

It can still happen that defendants can’t pay even 10 percent of the bail amount. In those cases, family or friends may put up the money. But there’s a significant difference between needing to borrow $3,000 and needing to borrow $300.

Additionally, surety bonds, unlike government-funded bail reform systems, aren’t paid for by taxpayers.

How Bail Reform Can Backfire

Ultimately, many bail bond reform models end up hurting the very people they’re intended to help.

Silicon Valley De-Bug dropped its support of the California bill. Cofounder Raj Jayadev called the bill a bait-and-switch. And he’s right.

The new bill will allow prosecutors to file for “preventative detention.” But not just for violent offenders who pose a risk to public safety. They could also file the motion if it’s believed the defendant might not appear in court.

Under the cash bail system, bail bond agents take on the responsibility of ensuring those individuals go to court. Without a bail bond agent, those individuals may now otherwise be incarcerated. What happened to innocent until proven guilty?

And then there are the victims. When the court makes a mistake and releases the wrong person, how will the government make sure they get their day in court? How much of our taxpayer dollars will that cost?

Cash Bail Is Still the Best Solution

University of Texas at Dallas criminology professor Robert G. Morris says commercial bail bonds are still the most effective way to ensure defendants show up. His study showed defendants released on commercial bonds were more likely to show up than those who paid bail out of pocket or got an attorney bond or pretrial services bond.

Bail reform isn’t the solution. The justice system committing to due process and racial equity is.

Posted with permission from the author

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