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What Would a Just (Fair) Pretrial Bail System Include (or Exclude)

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California passed legislation in August to get rid of money bail, joining the wave of states and local jurisdictions that have undertaken some form of bail reform over the past few years. When the new law goes into effect in 2019, people arrested and charged for a crime in California will no longer be asked to post bail as a condition of their release

The trend away from money bail — the payment required for a person to be released from jail as they await court hearings — is a welcome development. The use of money bail is one of the most troubling features of our deeply unequal justice system.

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In the past 15 years, the number of people jailed in the US has grown sharply (continuing a steady upward trend that started in the 1980s). But also in the past 15 years, the number of people convicted of crimes has stayed the same. What’s going on? The alarming answer: More men and women are in jail simply because they can’t afford the price of bail. The crimes they’ve been charged with are often nonviolent — disorderly conduct, a probation violation — and the bail amounts are less than $1,000 — maybe $500 or $750, as Robin Steinberg of The Bail Project explains in her TED talk (What if we ended the injustice of bail?). But when a person can’t come up with the bail money — and a 2017 Federal Reserve report found that 4 in 10 Americans couldn’t cover an unplanned $400 expense — they’re forced to stay in jail until their court date. In the criminal justice system, this is called “pretrial detention,” and it can last for weeks, months or even years

The United States Constitution says a person is considered innocent until they’re proven guilty — so that means more than 450,000 innocent people are currently in jail, simply because they’re too poor not to be there. “Bail was never intended to create a two-tier system of justice: one for the rich and one for everybody else,” says Steinberg. “But that is precisely what it has done.”

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A necessary step for adopting any risk assessment instrument is to validate it for the local population. Each risk assessment tool has been trained on a certain dataset and is therefore accurate for that training data. But the tool needs to be tested to make sure that it will be accurate for new data. Rather than adopt a risk assessment tool off the shelf, a jurisdiction should test the tool to see if it would remain accurate for that jurisdiction’s pretrial population. If an assessment tool has poor predictive accuracy for the jurisdiction, the jurisdiction should not adopt it. The validation process uses existing court data to test how accurately the risk assessment tool would have predicted the pretrial behavior of recent defendants

To validate a risk assessment tool, jurisdictions typically rely on technical assistance from a university or non-profit organization. Engage the community Particularly with new and controversial elements of reform, like algorithmic risk assessment, broad community engagement and education must occur before changes are adopted. Community input should be solicited and considered before any risk assessment tools are deployed. Because these tools will judge members of the community and help determine their freedom, the public must have the opportunity for input. Before adopting these tools, public hearings should be held, and the public should have the opportunity for notice and comment. Community groups and advocacy groups should be included on government committees tasked with evaluating these tools (Curtis E.A. Karnow, 2008).

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In the long run, the decision whether to release a defendant prior to trial is, in the great majority of cases, the most consequential ruling that will occur in the case—in terms of its effect on the defendant’s life, on his or her family, on his or her future prospects, and on the particular case in which the defendant stands charged. At this moment in history, there is widespread revulsion toward the unnecessary cruelty of a system that depends far too heavily on incarceration. We should not squander the moment by demanding less than what justice requires.

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BAIL REFORM PRIMER, supra note 14, at 6.

Curtis E.A. Karnow, Setting Bail for Public Safety, 13 BERKELEY J. CRIM. L. 1, 3–4 (2008).

HUMAN RIGHTS WATCH, “NOT IN IT FOR JUSTICE” HOW CALIFORNIA’S PRETRIAL DETENTION AND BAIL SYSTEM UNFAIRLY PUNISHES POOR PEOPLE 6 (2017)

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