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This Bail Reform is a Bad Idea

MAR 27, 2019  5:00 PM

Albany’s hasty push for bail “reform” is a deeply unwise, unfair and unsafe move for the Empire State.

Set on ill-conceived action, legislators and Gov. Cuomo are only quibbling over whether to use a “dangerousness” standard in determining an offender’s release eligibility.

Such reforms are not about improving public safety but political posturing.

Advocates and activist judges argue there is an inherent unfairness to bail practices because indigent defendants cannot post the same bond at the same rate as wealthier ones and want it abolished — by any means necessary.

One high-profile case in New York illustrates the dishonesty of reform advocates. Kalief Browder, the teenager locked up over a stolen backpack who later tragically committed suicide, actually did secure the $3,000 to get bailed out, but authorities later realized he was not bail-eligible at all, having violated his probation.

Bail exists for very good reasons. It provides yet-to-be adjudicated defendants the opportunity to be released pending trial and participate in their own defense, while providing society with “surety” that the accused will appear for trial.

As President Obama’s own solicitor general Donald Verrilli, explained in 1982, “Bail acts as a reconciling mechanism to accommodate both the defendant’s interest in pretrial liberty and society’s interest in assuring the defendant’s presence at trial.”

No matter the mechanism (third-party responsibility, property or cash), bail has been a guarantor of the accused’s liberty and public safety by creating stakes for the accused to fulfill their obligation to be adjudicated in our criminal justice system.

The U.S. Supreme Court has explicitly ruled that the standard is not and cannot be “affordability.”

Throughout English common law and American colonial history, bail was understood as a check on tyranny and arbitrary detention. But this history is lost on bail abolitionists who prefer to replace the system with “pretrial release” services.

The use of text-message reminders, parole-like check-ins, and home confinement monitors are all well and good but do not actually determine who gets the privilege of their liberty.

The solution that bail critics offer is a strangely contemporary one: Let algorithms decide who goes free and who remains locked up. But this is unfair. Computer-based “risk-assessment” tools are terrible at human jobs.

The algorithms, which score the accused, are used as “guides” for bond hearing decisions but are themselves rife with bias and often increase the disparities bail critics seek to end.

Furthermore, these tools don’t work as well as bail in keeping defendants on the straight-and-narrow and in court for their adjudication — making the public less safe.

Advocates for bail’s elimination point to “success” stories like New Jersey where the number of pretrial detainees fell by 20% after the state’s reforms. New Jersey has yet to reveal the failure-to-appear and recidivism rate for all released defendants, compared to under the previous bail bonds system.

If experience is any guide, the Garden State’s rates of non-appearance and recidivism will have spiked. Extensive research has shown that human-based bail-setting works in assuring court appearances, reducing crime and, paradoxically, reducing disparities for the accused.

In Kentucky, which advocates hold up as an early exemplar of eliminating money bail, peer-reviewed studies show that pretrial crime by released defendants has increased as well as the likelihood of the accused failing to appear for court hearings.

No, the bail system is not perfect. Of the hundreds of thousands of jailed defendants, some are surely there because of the capriciousness of the bail judge or the arbitrarily high statutory bail, set beyond of the means of many who might benefit from their liberty and do no harm.

Yet we should not legislate from the state capitol floor, or the bench, based on anecdotes of an injustice here and a mistake there.

Eliminating money bail does not achieve fairness and safety in our criminal justice system. It instead punts human discretion, and all its incumbent failings, to algorithms that fail to deliver justice.

Kennedy is a fellow at the Foundation for Safeguarding Justice and Maryland Public Policy Institute, and the author of the 2017 study, “Bent, Not Broken: Assessing Maryland’s Bail”

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