This graph shows local jail inmates in the United States.
In the past twenty years, that population has shot way up.
And there’s something surprising about that rise.
You can see it if you only look at inmates with convictions.
Around 1999 that population leveled off, meaning most of the rise came from this group: non-convicted
prisoners.
Every day in the US, nearly half a million people sitting in local jails haven’t been
convicted of anything.
Why are most of them there?
Because they can’t afford cash bail.
In 2009, the last year relevant federal data was released, the median bail was $10,000
for felony defendants, much higher than many Americans can afford.
And in a 2014 analysis of New York City jails, researchers found that only 14 percent of
people given bail were able to pay at their initial hearing.
Now, lawmakers and activists are trying to get rid of cash bail.
When bail is set unreasonably high, people are behind bars only because they are poor.
And I congratulate California to help lead the effort to do away with cash bail.
A bill to reform New Hampshire’s bail system now headed to the Governor’s desk.
Courts are starting to eliminate cash bail, but that’s creating another problem: What
comes next?
Let’s look at someone committing a minor offense, like breaking an open container law.
They are arrested and brought before a judge, who typically has three options.
Deny bail and keep the defendant in jail until trial,
release them without bail, which might include monitored supervision,
or set bail.
Cash bail is intended as collateral.
It’s supposed to be used to make sure people show up for their trials — not as a punishment
or a way to imprison.
If the defendant pays bail, they can go free until trial.
And when they return to court and their trial ends, they get their money back.
But if they don’t have enough money for bail, they go to jail.
In 2013, the average number of days detained pretrial was 28 for Philadelphia defendants
with bail of 2000 dollars or less.
During that time a person’s life can fall apart.
If they don’t show up for work, they can lose their job.
If they are a parent, a child loses their caregiver.
And if they live in a shelter, their housing is gone.
While in jail, it’s likely they will be given the option of pleading guilty.
With so much on the line, many people choose to plead guilty instead of waiting for a trial.
That deal gives them their freedom, but a criminal conviction has long-term consequences.
Particularly for someone’s ability to find work or housing.
Cash bail isn’t fair.
For those who can’t afford it, the system presents a series of problems that wealthier
defendants are often able to avoid.
The only difference between the two paths is how much money you have, not how guilty
you are.
So what’s a better alternative?
D.C. courts effectively eliminated cash bail in 1992.
Instead, judges use risk assessments to inform pretrial release decisions.
If the person breaking an open container law had been arrested in DC, a court official
would enter data about them into a risk assessment.
Algorithms analyze the data, and the defendant is scored for their likelihood to commit new
crimes and return for trial.
In most assessments, those results are delivered to the judge with a pretrial release recommendation
that they can choose to follow at their own discretion.
Risk assessments are supposed to help ensure that a judge’s decisions are accountable
to an objective standard, instead of just a hunch.
The data is encouraging.
In 2017, 94% of defendants were released pretrial, 88% of those returned for every single court
date, 86% weren’t arrested during that time.
And overall the decision to remove cash bail saves D.C. courts close to $400 million a
year.
As more courts consider eliminating cash bail, it’s likely that risk assessments will be
used instead.
But that’s raising a concern that one biased system is being traded for another.
Risk assessments use data about defendants’ criminal histories without always considering
other factors.
And social prejudices and over-policing make it more likely that low-income and minority
Americans will have prior convictions.
Reformers worry that relying on a score that doesn’t acknowledge that bias risks perpetuating
it.
The ACLU even decided to oppose California’s decision to eliminate cash bail, in part because
of the debate over risk assessments.
Let’s say our defendant accepted the plea deal after being arrested for an open container.
Then they get arrested again, for another low-level offense, like shoplifting.
The conviction from their earlier guilty plea would increase their risk assessment score
— making it more likely that a judge sends them to jail this time.
But the assessment wouldn’t show that they pleaded guilty because they couldn't afford
to stay in jail awaiting trial after being unable to afford bail.
On the plus side, judges also have other tools to inform their decisions.
Conditional release programs give judges more pretrial release options, including drug testing,
in-person check ins, and electronic monitoring.
Still, those programs cost courts money and can be invasive for defendants.
Less intensive support services like sending court reminders and providing transportation
can also increase the chance that people return for trial.
Providing additional pre-trial options and services can help reduce the likelihood that
judges become over-reliant on risk assessments — or resort to their first option: keeping
defendants in jail.
Because US judges are elected by voters, they’re incentivized to keep people locked up.
When you’re running to keep your job, you don’t want to be the judge who let the violent
criminal go free before trial.
Using money to decide who goes to jail creates two very different paths: one for those who
have money and one for those who don’t.
And while alternatives present their own problems,
having more steps in the process can mean
that fewer defendants overall are funneled to jail while waiting for their trial.