This post is written by Associate Editor Lindsay Mumley. Opinions and views expressed herein are those of the writer alone.
There have been two major improvements to the bail system in America during a recent push for bail reform: the use of risk-based assessments and getting rid of the money bail system1 Only New Jersey and Washington District of Columbia have abolished the money bail system. The rest of the country continues to utilize the money bail system but have added the risk assessment in an effort to foster objective reasoning in determining bail.
The risk assessment utilized in pre-trial is derived from empirical research that evaluates a defendant’s likelihood to make all future court appearances and have a successful pre-trial free of any new charges 2 The assessments vary depending on the jurisdiction but generally have similar factors that are weighed.3 These factors include criminal history, age, previous failures to appear, and other individualized characteristics.4
The assessment results in the defendant being scored based on his risk level.5 Virginia uses a numerical based scoring that ranges from one to five, five being the highest risk level. States like Kentucky and Colorado translate the numerical score derived from the assessment into categories: low risk, medium risk, and high risk.6 The judge uses this score to make a determination about bail.
While a step forward in much-needed reform, risk assessments can be an incomplete picture of what will determine success in pre-trial. A defendant may be low-risk, however, more intrusive court services are warranted due to a drug addiction or mental health issue.7 Ultimately, the judge is expected to weigh the score and other extrinsic, relevant characteristics in determining bail.8 However, judicial latitude in making these determinations are the reason why more reform is required to restore the presumption of innocence in pre-trial.
The Supreme Court repeatedly affirms that liberty and justice are not luxuries of the rich defendants.9 However, using a risk assessment score alone results in two defendants with identical risk scores with vastly different fates: one jailed for being poor and the other, just as “risky” defendant, on the streets. Continuing to use a monetary bail system violates any notion of equal justice or fundamental fairness as required under the fourteenth amendment.10 Reforming how unjustly the impoverished are affected during pre-trial is fundamental in overhauling bail because they make up almost 80 percent of the criminal population.11
Often judges are making an arbitrary bail decision without taking into account the individual financial capabilities of the individual.12 Only half of the individuals are able to meet the financial obligation of bail.13 The other fifty percent are deprived of equal justice despite frequent supreme court rulings disavowing incarcerating an individual because he is poor. The true violation of fundamental fairness is evident when looking at the unjust effect of remaining incarcerated has on the defendant’s criminal case.
Even if innocent, a defendant who is detained pre-trial is more likely to plead guilty in order to be released.14 Regardless of guilt, remaining detained pre-trial has profound effects on the sentence the defendant will ultimately receive. A detained defendant is least three times more likely to be incarcerated and face sentences three times longer than their released counterparts.15 The current bond money system is manufacturing unjust results for being poor and should be abolished.16 It is already happening and the results illustrate that money bail is not necessary to protect the government’s interests.
New Jersey has not only implemented a risk assessment tool but has essentially eradicated the money bail system.17 During the implementation of these new polices, the jail population dropped over thirty percent.18 The community is safer with an unprecedented drop in violent crime and overall crime.19 New Jersey accomplished this without unjustly affecting the impoverished.
The District of Columbia has been without money bail for many years and as a result has one of the lowest pre-trial detention rates in America.20 Ninety-two percent of defendants are released pre-trial and inability to pay is never a factor.21 While release rates are high, the research shows the governments interests to prevent future crime and ensure court appearances are met.22 Ninety percent of released defendants had no issue making all future court appearances.23 Of the defendants released, eight-nine percent were not rearrested on new charges and ninety-eight were not re-arrested on violent charges.24 The District of Columbia is another jurisdiction illustrating that the justice system does not need money bail to ensure appearance rates or protect the public.
The United States Supreme Court held that “in our society, liberty is the norm and detention prior to trial or without trial is the carefully limited exception.” 25 In order to achieve that aspiration, eradicating the money bail system and enforcing objective risk-based assessment is an absolute.
1 The State of Pretrial Justice in America. Report. Pretrial Justice Institute. November 3, 2017.
2 Pretrial Justice Institute, Pretrial Risk Assessment: Science provides guidance on assessing defendants. Issue Brief, May 2015, http://www.pretrial.org/download/advocacy/Issue%20Brief-Pretrial%20Risk%20Assessment%20(May%202015).pdf
9 The supreme court held that, there can be no equal justice where the kind of trial a man gets depends on the amount of money he has” Griffin v. Illinois, 351 U.S. 12, 19, 76 S. Ct. 585, 591 (1956). And further held that depriving a defendant of liberty based on his inability to pay was contrary to the fundamental fairness required by the Fourteenth Amendment. Bearden v. Georgia, 461 U.S. 660, 673, 103 S. Ct. 2064, 2073 (1983).
11 Mary Sue Backus & Paul Marcus, The Right to Counsel in Criminal Cases, A National Crisis, 57 Hastings L.J. 1031, 1034 (2006).
12Timothy R. Schnacke, Fundamentals of Bail: A Resource Guide for Pretrial Practitioners and a Framework for American Pretrial Reform, National Institute of Corrections, (2014). note 13, Std. 10-1.1, at 25.
13 Brian A. Reaves, Felony Defendants in Large Urban Counties, 2009 –Statistical Tables, Bureau of Justice Statistics (2013).
14 Justice Pol’y Inst., Bail Fail: Why the U.S. Should End the Practice of Using Money for Bail (2012), available at http://www.justicepolicy.org/uploads/justicepolicy/documents/bailfail.pdf.
15 Laura & John Arnold Found., Pretrial Criminal Justice Research (2013), available at http://www.arnoldfoundation.org/wpcontent/uploads/2014/02/LJAF-Pretrial-CJResearch-brief_FNL.pdf
16 The State of Pretrial Justice in America. Report. Pretrial Justice Institute. November 3, 2017.
17 New Jersey State Police, Uniform Crime Report, January-September 2017, generated December 13, 2017. http://www.njsp.org/ucr/pdf/ current/20171013_crimetrend.pdf
20 Pretrial Justice Institute, The State of Pretrial Justice in America. Report. November 3, 2017.
22 Based on statistics from 2007 to 2012. Criminal Justice Policy Program, Harvard Law Sch., Moving Beyond Money: A Primer On Bail Reform 14-18 (2016), http://cjpp.law.harvard.edu/assets/FINAL-Primer-on-Bail-Reform.pdf 36 moving beyond money
23 The State of Pretrial Justice in America. Report. Pretrial Justice Institute. November 3, 2017.
25 United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095 (1987)