Topic: Bail

“I’ll bail you out”—we say that phrase so often it has become an idiom divorced from meaning. The concept of having to pay to secure your freedom has become so ingrained in American society that people rarely stop and ask “why?” This is America—you are innocent until proven guilty. On the eve of Labor Day weekend, when Americans celebrate the hard-fought victories of workers who organized for fair wages and safe working conditions, we must examine the for-profit, commercial bail bond system’s impact on today’s working families and ask why people presumed innocent remain incarcerated unless they give the court—or a for-profit bail bond company—their hard earned money.

This is a poignant question here in New Orleans. Long the most incarcerated city in the most incarcerated state in the most incarcerated country on this planet, our local jail population has come down from the post-Katrina high of 3,400. Yet we still incarcerate people in our jail at a rate twice the national average. As of today our local jail population is roughly 1,800. Of that number, approximately 1,400 are pretrial and presumed innocent.

The answer is obviously not to simply open the doors of the jail and let everyone out until their trial, but to determine who does not belong in jail pretrial. The U.S. Constitution mandates that an individual accused of a crime may only be incarcerated pretrial if they pose a flight risk, or are a danger to public safety if released.

Yet the commercial bail bond system does not align with the goal of detaining only those who pose such risks, nor does the long-held assumption that a person is less likely to flee if required to give the court something of value as collateral. What does the ability to pay have to do with a person’s risk to public safety? And what if he or she cannot afford the bond set for reasons that have nothing to do with risk, such as poverty? For those who cannot pay the full amount of their bond, the bail bond industry will front the money, in exchange for a nonrefundable fee, of course (usually ten percent of the total bail amount). The better question to ask may be: why should people’s freedom depend on their wealth?

The New Orleans Pretrial Services program (NOPTS), and similar service agencies in major cities all over the country, attempt to render those questions moot by establishing an objective screening system to determine a person’s risk of flight or threat level. A pretrial services agency typically screens every arrested person using factual, objective metrics, such as criminal history, employment history, family situation, the seriousness of the person’s charge, and other factors. This screening tool calculates a risk score the judge can then use to determine whether a person poses a risk and should be detained pretrial. Ability to pay never enters the equation.

It is critical to shift the presumption away from requiring arrestees to post a bond, and instead use an objective system to help determine actual risk. NOPTS helps the New Orleans criminal justice system, and the magistrate judge in particular, accomplish this.

The city is participating in the MacArthur Foundation’s Safety and Justice Challenge, and has set a goal of reducing the local jail population to fewer than 1,200 by 2018. Projections further out anticipate a possible reduction to 1,000 total detainees by 2020—an incarceration rate that would finally align New Orleans with the national average. But these reductions are only possible if New Orleans and its citizens take a step back and examine why the criminal justice system is the way it is, and whether we have erected barriers to pretrial release that siphon money out of working class communities for reasons that have no bearing on public safety.

NOPTS has already played a large role in reducing the pretrial jail population by providing fact-based assessments of risk. While NOPTS has been met with some resistance, there is momentum building for fairness and justice in our criminal justice system. As city leaders and the community become more aware of just how many poor people are held in jail for no other purpose than the profit of the bail bond companies at the cost of millions of dollars to taxpayers, more and more people will begin to ask: “why?”

This post originally appeared on the Vera Institute of Justice’s Current Thinking Blog. 

Susan Guidry is the City Councilmember for District “A” and chair of the council’s Criminal Justice Committee.

New academic analysis shows Chicago area bail reform efforts since 2017 have had no impact on new criminal activity or new violent criminal activity of those defendants released pretrial.

Overall crimes rates in Chicago, including violent crime rates, were not any higher than expected after the implementation of the effort. The analysis echoes that performed in other areas where similar bail reform efforts have been undertaken such as New York, New Jersey, and Philadelphia.

You can read the full report here. 

Everyone wants safe communities. But our research suggests that releasing people on their own recognizance does not make communities less safe. And taking money away from people to secure their release does not make communities safer. Monetary bail, however, does impose a burden on those individuals and their families who are least able to afford it.

Like bail reform efforts in other cities, Chicago’s initiative demonstrates that it is possible to decrease the use of monetary bail and decrease pretrial detention – and lessen the financial, physical, and psychological harms that come with pretrial detention – without affecting criminal activity or crime rates.

In Chicago, the effort began on September 17, 2017, when the Chief Judge of the Circuit Court of Cook County issued General Order 18.8A (GO18.8A) to reform felony bail practices in Cook County.

GO18.8A established a decision-making process for felony bond court judges. Under the order, bond court judges were to first determine whether a defendant should be released pretrial and, if not, hold the defendant in jail. If the defendant could be released, GO18.8A created a presumption of release without monetary bail; however, if monetary bail was necessary, the order stated that bail should be set at an amount affordable for the defendant. In the end, GO18.8A established a presumption of release without monetary bail for the large majority of felony defendants in Cook County and encouraged the use of lower bail amounts for those required to post monetary bail.

After GO18.8A, there was a significant increase in the use of I-Bonds, or individual recognizance bonds for which defendants are released without having to post monetary bail.

The impact of this shift was dramatic: 3,559 additional people received an I-Bond in the six months after bail reform began. The real impact of this change was that none of these defendants had to post monetary bail to be released pretrial, saving these defendants and their families $13.6 million in avoided bond costs.

D-Bond amounts, where a defendant pays 10% of the bail amount to secure release from jail­–were also lower after bail reform. Before the effort began, the average was $9,316 to secure release, compared to $3,824 afterwards.

Combined with increased I-Bond usage, our analysis showed that Chicago saved defendants and their families more than $31.4 million in the six months after the initiative was introduced. That means bail reform in Chicago allowed defendants and their families to have $31.4 million available to be used for rent, food, and medical care while their cases were being resolved.

Likewise, the initiative did this without affecting new criminal activity of those released or increasing crime.

Bail reform efforts across the United States have accelerated in recent years, driven by concerns about the overuse of monetary bail, the potentially disparate impact of pretrial detention on poor and minority defendants, and the effects of bail decisions on local jail populations.

Proponents of bail reform advocate for reducing or eliminating the use of monetary bail, arguing that many defendants are held in jail pretrial solely because they cannot afford to post bail. Opponents counter that reducing the use of monetary bail or increasing the number of people released pretrial could result in more defendants failing to appear for court.

A debate has also played out in the media regarding the link between GO18.8A and possible diminished safety, but until our analysis, a rigorous, objective, external assessment has been lacking.

Ultimately, we found that money should not be the mechanism by which the court determines which people to hold and which people to release. Opponents of bail reform may continue to argue that reducing the use of monetary bail and increasing the number of people released pretrial will result in more defendants committing more crimes while on pretrial release. But that is not what happened following bail reform in Cook County, consistent with experiences following bail reform in New York, New Jersey, and Philadelphia.

 —Dr. Don Stemen is an Associate Professor and Chairperson in the Department of Criminal Justice and Criminology.

—Professor David Olson is a Professor in the Department of Criminal Justice and Criminology at Loyola University Chicago and is also the Co-Director (with Diane Geraghty, Loyola School of Law) of Loyola’s interdisciplinary Center for Criminal Justice Research, Policy, and Practice.

Those of us on different sides of the political spectrum can disagree on plenty of issues, but we can all agree that more must be done to uphold equal access to justice as enshrined in the U.S. Constitution.

Justice for all is a core value of the John D. and Catherine T. MacArthur Foundation’s Safety + Justice Challenge. And it’s achievable. We should start with the pretrial system, moving from the current approach largely based on ability to pay to a system focused on public safety and due process.

Having more money in a free market economic system should mean you can buy a bigger television or a nicer house, but it shouldn’t grant you better access to justice. A pretrial system based on wealth combines with other disparities—such as the ability to obtain qualified defense counsel—to undermine equal access to justice.

In Tarrant County, which is the area around Fort Worth in Texas, for example, some 9,000 low risk-assessed defendants languished in jail for a year or more before trial because they couldn’t afford bail set at $2,000. That is to say, they couldn’t find $200 to pay a bail bondsman.

In practice, pretrial liberty is not the norm, despite both the Constitution and Supreme Court precedent demanding that pretrial detention be a “carefully limited exception.” Rural areas, not urbanized ones, have been driving much of this growth in pretrial incarceration.

This could be because of fewer judges and lawyers to process cases in small towns, economic incentives to build unnecessary jail capacity, and the opioid epidemic. Possible solutions include reducing jailable offenses, expanding police diversion, using validated risk-assessments to identify those who can be safely released following arrest, and revising state bail laws.

I recently discussed these topics in a conversation that covered bail reform and other pretrial justice issues in the context of COVID-19, as well as in the aftermath of the death of George Floyd. The panel, which was part of the 2020 Smart on Crime Innovations conference, featured diverse perspectives, including those of Cherise Fanno Burdeen of the Pretrial Justice Institute, Kristie Puckett-Williams of the North Carolina ACLU, and Terry Schuster of the Pew Charitable Trusts.

These discussions come at a highly polarized time, when some question whether local and state governments can afford reforms. Having worked on criminal justice policy in Texas since 2005—when reform was not even on the radar screen—and spearheaded the launch of Right on Crime in 2010, I know the importance of sustainable models, such as Texas’ landmark 2007 justice reinvestment package. This approach redirected some of the funds that would have been used to build new prisons to strengthening alternatives such as drug courts and mental health treatment, along with programming behind bars and increasing the number of halfway house beds. From 2007 to today, the state’s incarceration rate has fallen from 641 to 423 per 100,000 people. Most importantly, the crime rate has fallen 40 percent, exceeding the national decline.

Texas’ success was widely cited as an impetus for the federal First Step Act in 2018. That in turn created momentum for a second wave of state reforms. North Carolina’s governor just signed the state’s unanimously passed First Step Act, which like the federal version includes dialing back mandatory minimum drug sentences and increasing incentives for time off prison terms through completion of recidivism reduction programs.

Similarly, the Pennsylvania’s State Senate unanimously passed a probation reform bill in July that uses research to inform the length of supervision and allows those with exemplary performance to end supervision early.

And earlier this year, Louisiana passed a raft of reforms, while Tennessee reined in its sweeping drug-free school zone enhancement law, which is projected to save $18 million. Penalties will rightfully remain tougher for those who sell drugs to kids, but no longer will a motorist nearby face many more years in prison for simple drug possession.

While these efforts have bridged the political divide, those of us on the right must continue to emphasize how such reforms adhere to traditional principles of personal responsibility, limited government, and public safety. It is an opportunity to make the public safer while spending less money in the process. It is also a chance to humanely address challenges such as mental illness and addiction that cross all ideological lines.

Ultimately, criminal justice is different from other issues because the debate is not about whether government should be involved. It must be involved—delivering public safety and justice is one of the few core functions of government. Just as pretrial decisions should not vary based on whether one is rich or poor, every community is entitled to a justice system that not only holds individuals accountable, but is also held accountable for its outcomes.

This means applying the same lens of scrutiny to the criminal justice system as every other government system. Examples of this have included legislation requiring data reporting and performance measures. As policymakers face declining revenues and a public health crisis, our efforts to maximize the use of limited resources to create a fairer and more effective justice system have never been more urgent.

—Marc Levin is Chief of Policy and Innovation at Right on Crime, an initiative of the Texas Public Policy Foundation in partnership with the American Conservative Union and Prison Fellowship.