A little more than a year ago, New Jersey all but eliminated cash bail for criminal defendants, except for those charged with certain violent offenses.
Since the reforms took effect January 1, 2017, the county jail population is down 16 percent, says then-attorney general Christopher Porrino, who left office on January 16, when the new governor was sworn in. And preliminary numbers show a 5 percent decrease in violent crime over the year.
The reforms, Porrino says, address two problems: First, that violent repeat offenders were often able to buy their way out of jail; and second, that low-level, nonviolent offenders often languished in jail because they didn’t have the means to post bail.
Now, instead of needing money to attain freedom, which disproportionately punished poor and minority people, defendants are held or released because of their risk to society. “This is one of the best examples of where government can work,” Porrino says.
Determining who is held in jail and released is done, in part, through an algorithm called a risk assessment, a program being challenged by the bail industry, whose financial future is increasingly threatened. Although reformers say risk assessments decrease crime rates, reduce jail populations and increase government savings, the bail bond industry sees a permissive tool that is bad for public safety and an existential threat.
“Pretrial assessment represents a quantum step forward over the current subjective—and too often biased—decision-making,” says Cherise Fanno Burdeen, CEO of the Pretrial Justice Institute, a policy group in Rockville, Maryland, and co-chair of the ABA Pretrial Justice Committee.
In the most basic sense, a risk assessment takes a series of factors about an individual facing detention and provides an output, such as the likeliness that the person will show up to court or commit another crime.
While there are numerous risk assessment methods, one of the fastest proliferating tools is the Laura and John Arnold Foundation’s Public Safety Assessment, or PSA, which has been piloted in about 40 jurisdictions, including New Jersey.
Jeff Clayton, executive director of the American Bail Coalition, says risk assessments originally “were one more tool in the toolbox” that a judge could use to set bail. Although he has concerns regarding the underlying research and data that led to the creation of the PSA, he now describes the algorithm as a mechanism “to completely get rid of bail.”
A NATION LOCKED UP
Every year about 12 million Americans are booked into local jails. The Pretrial Justice Institute says about three out of five inmates are awaiting trial, costing taxpayers about $14 billion per year.
For judges, as a paper from the Arnold Foundation notes, the “decision—whether to release or detain a defendant—is far too important to be left to chance.” The foundation determined a data-informed risk assessment was the way to close this subjectivity gap.
Tools such as risk assessments are seen as a complement to implementing bail reform. In their absence, limiting cash bail can have mixed results. In Maryland, for example, a new judicial rule states that money bail should be used as a last resort. However, this led to only a slight increase of those being released in Baltimore, about 8 percent, and an increase of more than 140 percent of those held pretrial without bond, says Zina Makar, co-director of the Pretrial Justice Clinic at the University of Baltimore law school.
She says risk assessment tools—alongside services such as counseling—can improve the decision-making process and give judges the comfort to release people pretrial. But the bail industry isn’t convinced risk assessments work.
In New Jersey, the Arnold Foundation is a named defendant, alongside Porrino and then-Gov. Chris Christie, in a wrongful death suit that also seeks to halt the use of the PSA. The complaint alleges that Christian Rodgers, 26, was fatally shot by a man released under the risk assessment regime. He had been arrested on weapons charges before his release.
Rodgers’ mother argued in her complaint that because of the PSA, “throngs of violent criminals were released into the streets of New Jersey’s neighborhoods.” The complaint argues that the PSA’s formula undervalues certain cases that involve the unlawful possession of a firearm. (The case is being backed by Duane Chapman, a reality television personality also known as “Dog the Bounty Hunter” who chases bail skippers across the country.)
After Rodgers’ killing, the attorney general’s office released guidelines, which include the presumption that prosecutors will seek to hold people in pretrial detention on firearm possession charges (among other violent crimes).
While the lawsuit is pending, the Arnold Foundation is researching the impact of its risk assessment system and how it can be improved as it is rolled out to other jurisdictions, says Matt Alsdorf, president of Pretrial Advisors and previously vice president of criminal justice at the Arnold Foundation.
Although curtailing cash bail is a current topic in the states, the federal system rejected this approach in 1966 and tailored release decisions to the risk posed by the defendant. For Brett Tolman, a former U.S. attorney for Utah, his experience in the federal system bolsters his support of bail reform.
“I got to see how that worked,” Tolman says of the federal risk-based system. He says it was not perfect but thinks the current system is broken and being held hostage by the bail industry.
Not yet to the point of litigation, rules were proposed by the Judiciary Courts of the State of Utah that would move toward a risk-based system and a pilot of the PSA. But the legislature asked the courts to hold off after the industry intervened.
This hurdle has the potential to be a brutal fight. “If it sounds too good to be true, then probably it is,” said Wayne Carlos, president of the Utah Association of Professional Bondsmen and Agents, during a legislative hearing in September. “What is the real reason why the courts are trying to push this program? Let’s find out before it’s too late.”
Tolman says the bail industry used “misinformation and fear tactics” to get the Utah legislature to intervene after the legislative auditor general called for bail reform and the adoption of a risk assessment tool in 2017
With a temporary victory for the industry, the courts are in a “wait-and-see sort of approach,” says Geoffrey Fattah, spokesman for the Utah state courts.
To the southeast, New Mexico’s bail reform advocates successfully passed a state constitutional amendment in 2016 to decrease the state’s reliance on cash bail while keeping it as a limited option, says Artie Pepin, director of the Administrative Office of the Courts in Santa Fe.
However, the judiciary’s rulemaking and implementation, which includes a pilot of the PSA in Bernalillo County, was rejected by the bail industry.
The bail bonds association sued the state to halt implementation in 2017, although the case was later dismissed. Blair Dunn, an attorney for the association who was ordered to pay costs and attorney fees for filing frivolous claims, says the association is appealing to the 10th U.S. Circuit Court of Appeals at Denver.
Gerald Madrid, president of the Bail Bond Association of New Mexico, is a plaintiff in the case and is particularly critical of the risk assessment tool. He says it’s too permissive and essentially allows release for everyone, which puts the public’s safety at risk.
It has also hurt his bail bond business, which is based in Albuquerque. Since the reform, he laid off all 10 employees in the Albuquerque office, while his contractors in other parts of the state have scaled back operations. “It’s financially destroyed the bail bond industry in New Mexico,” he says.
Regardless of the hurdles placed by the bail industry, Porrino, the former New Jersey attorney general, is optimistic for the future of similar efforts. “As word starts to get out, I think you end up with a surge nationally to implement reforms a lot like the reforms being implemented here in New Jersey,” he says.