Matthew T. Mangino
December 31, 2017
The current bail system denies freedom to thousands of people who are presumed innocent but are financially challenged. Those who sit in jail are at risk of losing their jobs, their homes and their families.
Certainly, it’s unfair to incarcerate someone merely because they cannot afford bail. It is equally unfair to every man and woman in America to spend about $1 trillion, according to the Pretrial Justice Institute, on pretrial incarceration, which amounts to about 6 percent of the Gross Domestic Product.
Bail use explodes
According to White House Council of Economic Advisors, the use of bail has exploded in the past two decades, driving a 59-percent rise in the number of unconvicted jail inmates.
Correcting the bail crisis is not out of reach. This isn’t about being tough on crime. It’s about being fair. For some, even a nominal bond is out of reach. When an accused has no money, $1,500 might as well be $150,000.
For taxpayers the issue is just as compelling. If the cost of pretrial detention could be cut in half, taxpayers could save literally billions annually.
A number of Ohio advocacy groups have been pushing for the use of risk-assessment tools, reported the Plain Dealer of Cleveland. As a result, the Ohio Criminal Sentencing Commission formed a committee on bail and pretrial services to study the issue.
The commission released a report earlier this year that recommended courts establish a pretrial system that uses an “empirically based assessment tool” to help determine if somebody should be released from jail or kept in detention while awaiting trial.
The Ohio Legislature responded with a proposed law, which would require courts to use the results of a “validated risk assessment tool” as part of their bail-setting decisions.
As the pool of research grows and the science of risk assessment becomes more refined, “We actually have increasingly good models of who poses a risk and who doesn’t pose a risk,” John Pfaff, a professor of law at Fordham University, told The Washington Post.
The latest pretrial risk assessment tool is the Public Safety Assessment, developed by the Laura and John Arnold Foundation. Drawing from a database of over 1.5 million cases from more than 300 jurisdictions across the U.S., the algorithm calculates the probability that a defendant will commit a new crime, commit a new violent crime, or fail to return to court.
The assessment takes into consideration a number of factors, including pending charges, prior convictions, whether the current offense is violent, and whether the person has failed to appear at other pretrial hearings. But unlike a human assessor, it’s blind to race, gender, level of education, socioeconomic status, and neighborhood, all of which can affect a judge’s decision, whether subconsciously or consciously.
Some defendants being held pretrial belong in jail. Some are not eligible for bail, some are a legitimate flight risk and others a danger to society. However, some just can’t afford a monetary bond.
Detaining an accused pretrial also has a detrimental impact on families, employment and the viability of neighborhoods and communities disproportionately affected by the criminal justice system.
Ohio has now joined a chorus of jurisdictions calling for change. According to the New York Times, Colorado and New Jersey recently voted to overhaul their bail systems. Connecticut, New York, Nevada, Utah and Kentucky have adopted some sort of risk assessment tool to aid in making bail decisions.
Times are changing in the business of pretrial detention, and some merely accused of a crime – and every taxpayer – stand to benefit.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com
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