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Bail Bond Reform and Failed Leadership

Chess Pieces Checkmate

The big push nationwide for several years has been for state legislatures to pass bail bonds laws to reform the system, with a particular focus on eliminating “cash bail” for minor offenses. In Colorado, it looks like this. Defendants charged with being in a public park after hours (hmm, why would someone be in park after hours?) or walking their dog without a leash are now allowed to stroll out of court without dropping a single dime in the till.

Twisting the Numbers

Whether you live in Jefferson County, Arapahoe County, Denver County, or elsewhere in Colorado, you should be concerned not only with shackles placed on a bail bondsman as he tries to do his job, but leaders in the state legislature who ignore facts and twist numbers for their benefit. If you filter out all the noise and drill down into the rocky strata on which the law that Gov. Jared Polis signed on April 18, 2019 is supported by, you’ll notice some logic that doesn’t quite add up.

Pols like Polis and ACLU Public Policy Director Denise Maes and bail bond reform advocate Elisabeth Epps insist the judicial system is unfair to people who can’t afford to post bail when they get charged with petty crimes (hmm, see the case of Tiffany Harris) and shouldn’t be held in a cell because they don’t have money. The other argument? Prisons are overcrowded with people who shouldn’t be there, creating a budget crisis, and jails bursting at the seams are burdened by ridiculous population growth. Really?

Advocates point to the success in Mesa County, arguing that the model of State Public Safety Director Stan Hilkey shows reform works. Hilkey’s supporters say prison population is booming thanks to overall population growth, but over eight years, population in the country grew by only 0.9875% each year while average daily jail population went up 101.1% during the same time.

The Black Stain of Risk Assessment

Advocates of reforming how bail bonding works will tell you that success thus far is partly driven by using algorithmic risk assessment tools in the criminal justice system. Basically, these are expensive statistical and machine learning tools used in pre-trial decisions to determine two things: whether a defendant will perpetrate a new crime upon release, and whether he’d ignore his next scheduled court date. During pre-trial motions, a judge will review the numbers and if deemed low enough the defendant can leave bond-free. Using tools like this to predict future criminal behavior sounds like a plot twist from Captain America: The Winter Solider or maybe Minority Report. And that's not good.

Are algorithmic risk assessment tools bad? No. But like any complex, math-based system of analysis, they need regular oversite. State legislatures and law enforcement nationwide should review their efficacy each year, as well as any defendants released due to low scores who may have then become repeat offenders.

The Partnership on AI studied California’s S.B. 10 about the use of risk assessment tools for pre-trial detention decisions, and lawmakers and law enforcement in Colorado should give it a read. The “report documents the serious shortcomings of risk assessment tools in the U.S. criminal justice system” and outlines “ten largely unfulfilled requirements that jurisdictions should weigh heavily and address before further use of risk assessment tools in the criminal justice system.”

It’s reports like these – detailed, written by experts in their field dealing in facts and not bias – that get ignored by quick-trigger reform advocates. The group finds that risk assessment tools are challenged in three areas:

  • Concerns about the validity, accuracy, and bias in the tools themselves;
  • Issues with the interface between the tools and the humans who interact with them; and
  • Questions of governance, transparency, and accountability.

Bail Bonds Reform Failure 101

While it’s true that a bail bondsman is an important player in a multi-billion dollar industry, it’s also worth mentioning that these hardworking men and women – some of whom run companies that have been in business for multiple generations – support local economies by employing workers, paying taxes, spending money in the communities they serve, and working to be upstanding citizens in all regards. Folks within the bail bonding industry believe strongly in the U.S. Constitution, and the value of sensible, intelligently crafted legislation to implement reforms where needed, without impinging on anyone’s rights or livelihood.

But let’s be clear, some bail bond reform is misguided and rife with failure and every taxpayer and voter in the state of Colorado should pay attention to what happened in California. According to Michelle Renée Matisons, Ph.D., “What’s happening in California is a prime example of how prison reforms can backfire, undermining organizational efforts that send advocates back to the drawing board, wasting years of hard work.”

Whether based on good intention or not, California’s S.B. 10, as well as laws in New York, New Jersey, and Colorado, have built-in weaknesses which lead to confusion and sometimes disaster. For instance, judges now wield the power of discretionary judicial “risk assessment” (does a defendant who looks convincingly remorseful deserve to be released without bail, just because?) and can use his or her opinion to make important pre-trial release decisions.

Now that we live in the age of COVID-19, some states are recognizing that releasing defendants or prisoners without bail might not be such a good idea. Ultimately, reasonable discourse needs to follow its natural path, with all interested parties agreeing on suitable bail reform based on fact and case review – not opinion.

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