There has been a lot of talk recently about bail reform with a particular focus on something called “risk assessment algorithms”. The driving force behind the discussion is a desire by some on the left to circumvent the constitutional right to bail. According to them the constitution is irrelevant and computer programmers are better able to determine whether someone should be released pending trial than judges and prosecutors. Bail agents in particular, they claim, are the root of all that’s wrong with the criminal justice system in America and have no socially redeeming value.
But is that actually the case? Or is it just an attempt by the left to divert attention from the real causes of crime, like a lack of economic opportunities? Below, we’ll take a look at the different types of pretrial release currently being practiced in the US and see if we can determine which is most effective.
What is not often understood about bail is that it is not strictly a monetary proposition and often does not involve a bail agent. The word covers a range of potential pretrial release mechanisms. The fact is, within the current bail framework, a person may be released without having to pay a penny, or they may pay the bail amount in cash and never speak to a bail bondsman. But bail opponents often focus on the presence of the bondsman and single them out as “proof” that the bail system is corrupt. After all, these individuals are profiting from the misfortune of others.
First of all, as we said there is no guarantee that a bonding agent will even be involved in a particular pretrial release and second, the nature of the bail bond agent is not so different than that of the doctor or lawyer. Two other professions whose practitioners come to the aid of people in trouble and who profit from their services.
That said, the cash bail system has proven and continues to prove it is the most effective method of pretrial release when it comes to ensuring the accused shows up in court. People who have posted cash bail or a bond through a bail agent are many times more likely to appear in court to face their accuser than those who have been released by way of other methods.
The latest craze sweeping the judicial landscape is a little ditty called “unsecured bail”. With unsecured bail the defendant is told they can gain pretrial release as long as they promise to pay the full bail amount if they fail to appear for their court date. The thinking is that people arrested for weapons violations and breaking into other people’s homes are actually misunderstood. And if the system just shows a little faith in them they’ll mend their ways.
Of course, you can count on one hand the number of defendants who have turned down the opportunity to gain release on the basis of a promise. And, unfortunately, you can also be sure that most of them are not actually misunderstood. Nor are they particularly honorable. Nor are they likely to appear in court like they promised they wood. And they’re even less likely to pay the full bail amount for not appearing as they also promised to do.
In fact, the failure to appear rate for people released via unsecured bail is a staggering 40% in some states. As opposed to an average of about 10% for those who posted cash bail or a bond. In addition to creating a flood of fugitives this system is also costing states millions in lost bail.
With a risk assessment algorithm programmers working in secret with no government oversight create computer programs (algorithms) that are designed to predict who is and who isn’t a significant flight risk and who represents and doesn’t represent a threat to the community if released. Because machines are supposed to be objective and free of racial and class biases this system has been touted as the only really fair method for determining pretrial release ever invented.
So why do the ACLU and the NAACP oppose risk assessment? First, because the data used to reach risk assessment conclusions has been gleaned from now-discredited policing methods that targeted minorities. Second, because risk assessment legislation is often bundled with sweeping new powers being granted to judges. And third, because there is no accountability. The people who create these programs remain hidden and the code they write remains impenetrable to judges, prosecutors and defense attorneys.
And one more thing: when someone is released because the computer program judges them safe and reliable that person (even though presumed innocent) is put on a kind of probation and monitored by a Pretrial Service Agency. The problem is that monitoring so many people has proven an enormous financial strain in places like Jefferson County, Arapahoe County and Denver County And as a result 30% of those supposedly being monitored by PSAs fail to appear in court.
In spite of the fact that it is a prime target for opportunistic politicians bail bonding in the United States was and is far and away the most effective method for ensuring an individual appears in court to face the charges against them. As such it’s also the most effective means for ensuring victims are able to obtain justice. Something bail opponents almost never talk about.