The current premise of bail reform is little changed from its original concept in 1984 — and just as unrealistic. In a 2017 New York Times op-ed, Cherise Fanno Burdeen, CEO of the Pretrial Justice Institute, wrote, "We should replace money bail with evidence-based risk assessments, based on the data that best predicts court appearance and likelihood of rearrest before trial." Burdeen held that courts should be allowed to use preventative detention as a means of keeping high-risk defendants in jail. That is, individuals who posed a clear threat to public safety or were deemed a flight risk would be detained without bail being set for them. She proposed essentially a move to what is currently used in Washington, D.C., as well as the federal system.
The risk-based system advocated by Burdeen and other reformers actually began to seriously fall apart in July 2017. That is when Maryland's Court of Appeals changed its court rules to eliminate the option for judges to impose a financial bail and forced them into a sort of "take it or leave it" Hobson's choice — release defendants on a promise to appear with supervision, or instead, lock them up using preventative detention.
One year in, these rule changes increased the pretrial jail population in Baltimore City by 23 percent, according to WBAL-TV. Similar increases were also seen in Prince George's County between March 2017 (before the new laws kicked in) and March 2018. The increases were not just limited to urban areas. A November 2018 article in the Herald-Mail, a daily newspaper which serves rural western Maryland, noted the same trend. They reported that the percentage of all defendants detained prior to trial in lieu of bail in Washington County had gone from 24 percent in 2016, the last year prior to bail reform, to a whopping 74 percent today. This increase mirrors the numbers posted by the federal system, which detained 24 percent in 1983 and currently detains over 70 percent. Without the option of bail, it is clearly evident that judges prefer detention and do not trust free release with supervision by government employees.
The second significant development in 2018 was the rejection of the risk-based bail system by academics and civil rights groups. Previously considered the gold standard by bail reformers, a mathematically based algorithm was used for risk assessment and hailed as the ultimate in impartiality and accuracy.
On July 30, 2018, 110 national civil rights groups, including the NAACP and ACLU, issued a joint statement calling for the end of the use of pretrial risk assessments in the setting of bail in the United States. The statement read in relevant part, "Pretrial risk assessment instruments are not a panacea for racial bias or inequality. Nor are they race-neutral, because all predictive tools and algorithms operate within the framework of institutions, structures and a society infected by bias. Those facts weigh heavily against their use."
Myaisha Hayes, national organizer on criminal justice and technology at the Center for Media Justice, added her concern, noting that jurisdictions that rely on pretrial risk assessments place a technological barrier between individuals and their freedom. "Algorithms cannot undue the racial bias that exists in the criminal legal system," she said. "These and other high tech tools will always disadvantage communities of color and threaten to replace mass incarceration with digital prisons."
The third notable event in 2018 was the release of findings of scholarly research that strongly suggest that risk assessment technologies have the opposite effect of what is intended.
Risk assessment tools were posited to be a way to reduce mass incarceration. Cherise Fanno Burdeen argued in 2016 in The Atlantic, "Many jurisdictions already know how to replace outdated pretrial justice policies like cash bail with risk-based systems that are safer, fairer, and more effective."
Yet, in his June 2018 peer-reviewed academic research paper, Robert Werth, a professor at Rice University, argued that risk assessments were actually detrimental to their intended goals. Citing the oft-repeated argument that risk assessment tools could be useful to reduce the sheer volume of mass incarceration, he said, "… the evidence suggests that thus far, risk assessment instruments have contributed to expanding the number of people enmeshed in the criminal justice system — encompassing imprisonment, probation and parole."
Numerous other academics in 2018 came to the same conclusion as Werth. John Logan Koepke and David G. Robinson's cautionary article in the Washington Law Review noted the extent to which various jurisdictions around the country were embracing pretrial risk assessment tools, and how they were constructed — using historical data as the cornerstone in an attempt to predict which defendants can be safely released. Koepke and Robinson wrote, "Scholars, system practitioners, advocates and journalists are increasingly questioning the extent to which pretrial risk assessment instruments actually serve these goals. Existing scholarship and debate centers on how the instruments may reinforce racial disparities and on how their opaque algorithms may frustrate due process interests."
Just when sanity seemed to finally be prevailing regarding bail reform and risk assessment in 2018, along came California. Under the sponsorship of Democratic state Sen. Robert Hertzberg, Senate Bill 10 was passed in August — essentially implementing the Federal Bail Reform Act of 1984 on a statewide level. The centerpiece of the legislation was the use of risk assessment tools and the expansion of preventative detention, which was already coming under increasing criticism since the bill was first introduced in 2017.
Hertzberg and the California legislature rushed through SB-10 only days after a number of significant amendments were made to the bill which had remained virtually unchanged for a year-and-a-half since it first made its way to the Senate floor. Despite the efforts of its proponents to sneak it past lawmakers and citizens alike, more than 50 civil rights groups promptly rose up to oppose SB-10. In its final form, it called for the creation of three categories of risk: low, medium and high. Low risk would mean going home for free; medium, defendants would get expanded pretrial supervision and monitoring; and high risk would mean preventative detention — no release at all.
The actual determination of who would be low, medium or high risk would be defined by the risk assessment tool, the lynchpin of the new system.
This drew the ire of the ACLU of California, San Francisco Public Defender's Office and noted law Professor Erwin Chemerinksy, among others, compelling them to reverse their previous positions on bail reform and demand that the legislature stop SB-10. Unfortunately, their cries of protest were largely ignored due to the massive support of California's public employee labor unions, the last remaining true supporters of the legislation. These groups backed the bill principally because the elimination of bail was based largely on the significant expansion of supervision of defendants who are out on release — by government employees. This would mean more jobs, but at taxpayer expense. It would likely pad the rolls of California's labor unions through the addition of thousands of new unionized public employees. Of course, it would be free to defendants, as well as judges, who would be likely to take full advantage of the costly new system, as they would no longer have the tool of bail as an option.
Unfortunately, none of its advocates wants to admit or accept that the third-generation of bail reform has failed. But the fact is that taking away the right to bail and replacing it with risk assessments and preventative detention does not work. It not only increases the jail population, but when defendants are out on release, it trammels their other liberties. The implementation of draconian measures, utilizing electronic incarceration technologies, such as house arrest, GPS monitoring and blood chemistry monitoring, is not the panacea of social justice for which it has been characterized.
Those who do not learn from history are doomed to repeat it. Risk-based bail reform is dead and it is time to bury it once and for all. The "rich-poor" rhetoric frequently trumpeted is misguided and the alternative systems are worse than the previously existing systems. This doesn't mean that bail reform isn't necessary. We have already come forward with a plan calling for a fourth generation of bail reform, which would strip away the tarnished layers of algorithmic risk, preventative detention and electronic incarceration from the criminal justice system. In its place would be a return it to the simple system that functioned remarkably well on this continent for 400 years.
We owe it to ourselves to embrace the best options possible for criminal justice solutions. The implosion and ultimate failure of risk-based bail reform offers us a great opportunity to fix this broken system. Failure to do so gives the government a green light to constrain our liberties and incarcerate en masse, while taking a sledgehammer to the precious American concept of presumption of innocence.
Jeffrey J. Clayton is a licensed attorney and executive director of the American Bail Coalition. Most recently, he served as general counsel for the Professional Bail Agents of Colorado. He previously spent six years in government service, representing the Colorado State Courts and Probation Department, the Colorado Department of Labor and Employment, and the U.S. Secretary of Transportation.
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