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The Bail Reform Fight Continues

Brown, leather boxing gloves positioned on hard surface in fighting position

We hope we’re wrong, but what happened in Illinois – where voters abolished cash bail – could be a harbinger of doom for the far-off future of our industry. We say far-off only because voters in other states with limited reform, like New York, already have buyers’ remorse, so who knows? What we do know is legislators in California have recovered from the Proposition 25 failure, reform in Utah has been questionable, and Colorado is rolling out a new risk assessment tool.

California’s At It Again

One thing any news-aware bondsman knows is this: When lawmakers and activists get it in their heads that cash bail is evil, they’ll stop at almost nothing to end it. Forget about the economic havoc that could have on thousands of hardworking, law-abiding American citizens working in the industry, or the possible recidivism on the part of criminals which may result.

Two New Bills Under Consideration in California.

What would California’s proposed SB262/AB 329 do? The “bills would set bail at zero dollars for misdemeanors and most felony charges. For all other crimes, the bills would require the California Judicial Council to create a uniform bail schedule with standard bail amounts statewide. (Currently, each county sets a bail schedule.) Exceptions to zero bail include, among others, serious or violent felonies, violations of specified protective orders, battery against a spouse, sex offenses, and driving under the influence.

“The bills would also require the court to order a return of money or property paid to a bail bond licensee, by contract entered into on or after January 1, 2022, to obtain bail if the action against the person is dismissed, no charges are filed within 60 days of arrest, or the person has made all court appearances during the pendency of the action or proceeding. The bills would authorize the bail bond licensee to retain a surcharge not to exceed 5% of the amount paid.”

Problems in Utah

As you already know, the bail bonds industry takes heavy fire all across the country. Instead of trying to implement common-sense reform, or tweaking existing bail laws, lawmakers and activists are going full-bore. It's all or nothing. Either end cash bail, and hope that nothing brown hits the fan, or don't do anything but blame everyone else.

Illinois just ended cash bail completely, and now the desire to enforce criminal justice reform is starting to take root in allegedly ultra-conservative Utah. Basically, legislators in that state wanted more latitude in setting bail and went to, some would say, extreme measures to get it. Yep, they got what they wanted, and are now feeling the tummy ache of buyer’s remorse.

The Utah reform set four factors for a judge to consider when deciding what kind of conditions or monetary bail to put in place: Public safety risk, make sure the defendant shows in court, ensure the safety of witnesses and victims, and ensure the truthfulness of the court process.

Some bail bonding professionals, we’re sure, will be concerned that judges in Utah will be wary of potential lawsuits from the likes of the ACLU, especially if they do or don’t set bail in certain cases. Yes, it’s a mess, and one we need to pay attention to for fallout.

Now, Utah lawmakers, law enforcement, and some voters are calling the new law a disaster and are working to get it repealed – within months of implementation. Others are arguing the legislation needs to be tweaked or just given more time.

This seems to be common in states where cash bail reform is pending. Passion runs high, and people make decisions without thinking through what can and should be done.

Risk Assessment History

Colorado has a new, improved risk assessment tool – the Colorado Pretrial Assessment Tool-Revised (CPAT-R) -- ready for use, but do you know the history of this sometimes-controversial method of helping a judge decide if a defendant can be released without bail?

The whole concept of risk assessment within the judicial system began more than 100 years ago, when judges and law enforcement began relying on their professional judgment to determine if a defendant was a flight risk or potential danger to society.

Later, actuarial prediction became a thing with “static factors,” followed by dynamic factors and assessing needs, and finally, integration with case management. It’s the latest iteration of risk assessment tools, those driven by computer-based algorithms, that has garnered the most attention and controversy. Some jurisdictions across the country, like Colorado, rely on these tools to assign a number value to determine if a defendant should be released or not and, if not, use that to decide on bail.

Generally speaking, these are called risk assessment instruments. “A decision-making framework translates these risk scores into release-condition recommendations, with higher risk scores corresponding to stricter release conditions. Judges can disregard these recommendations if they seem too strict or too lax. Other RAIs influence a wide variety of judicial decisions, including sentencing decisions and probation and parole requirements.”

According to researchers at the University of Northern Colorado, the CPAT-R “is more accurate in terms of its predictive performance compared to the CPAT, and it’s on par with other validated pretrial risk assessment tools being used in different areas of the country.”

Cash bail opponents – the loudest voices at the forefront of the “kill cash bail” movement nationwide love these kinds of tools. But if you’re a bondsman in Arapahoe County, Jefferson County, or Denver County, be wary of their use.

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