Cash bail system makes poverty a crime

Jeremy Travis, Opinion contributor
Published 5:32 p.m. ET May 11, 2018

It’s time for a new national approach — one that assesses risk instead of demanding money

Almost a dozen men in Atlanta said they spent two weeks in jail after being kept out of court where they could have asked for bail on low-level offenses such as running into traffic or not having car insurance.

A Texas county has been accused of conducting jail-house bail hearings in secret, barring family members, community advocates and reporters.

A retired shipyard laborer in San Francisco, accused of threatening his neighbor and stealing $5 and a bottle of cologne, was stuck in jail for more than 250 days. His crime amounted to a few dollars, but his bail was set at $350,000.

These and countless other incidents illustrate the urgent need for bail reform.

As a result, many jurisdictions are considering risk assessment instruments as an essential component of pretrial decision-making. As powerful as it is, risk assessment must be part of a broader local discussion to improve public safety and confront an unprecedented growth in the nation’s jail population.

Local jurisdictions must act

In a sign of the growing momentum behind criminal justice reform, more local jurisdictions are looking for ways to reduce unnecessary pretrial detention and lessen reliance on money bail to make release decisions.

Over the past year, multiple state and local legislatures have considered (and some have passed) bills that reduce reliance on the cash bail system, swapping the money demand for risk assessment systems. Jurisdictions are using alternatives such as pretrial supervision services and speedy trial provisions. A federal bill, with bi-partisan support, has been introduced to promote the use of individualized risk assessment. And civil rights organizations are backing steps to curb other abuses, from practices that reflect racial bias to jail overcrowding.

This energized focus on judicial detention decision-making is rooted in a fundamental question: With someone’s liberty at stake, what is the fairest, most humane way to assess whether those arrested should be released or kept in jail pending trial?

At issue is America’s irrational two-tiered money bail system in which how much money you have is more important than the risk you pose to public safety in determining whether you can go free while awaiting trial. Defendants with money are cut loose while poor defendants accused of petty crimes are often left behind bars, ruining innocent people’s lives and creating a perverse incentive to plead guilty.

Foundations like the one I’m a part of (the Laura and John Arnold Foundation) are pushing for the expansion of access to evidence-based risk assessments to help courts make better release or detention decisions.

Benefits of bail reform are clear

Data — such as whether the accused has a history of prior convictions, pending charges, and whether the person has ever failed to appear in court — can provide judges with the information necessary to determine whether to release or hold a defendant before trial. Those factors are more predictive of whether a defendant will be a flight risk than their ability to afford bail.

Not only is the demand for risk assessment growing, communities are benefiting from its use. 

Within its first year of adopting pretrial reform (including risk assessment), New Jersey recorded a 20% reduction in its pretrial jail population while simultaneously experiencing a reduction in its overall crime rate. 

In states such as Ohio and Utah, where risk assessment is beginning to take a broader hold, recent polls show that voters overwhelmingly prefer a pretrial system that focuses on potential risk rather than money.

Now is the time to build a national commitment so more jurisdictions can access this kind of reform. 

The challenges are many as we move into this new era, but the call for change is strong. Our Constitution prohibits the use of “excessive bail” and gives everyone the right to be considered innocent until proven guilty. The momentum behind today’s bail reform movement will bring us closer to that lofty goal.

Jeremy Travis is executive vice president of criminal justice for the Laura and John Arnold Foundation.

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