Essay 4 Draft
Innocent until proven guilty – the basis for justice.
Bail is the price for the temporary release of an accused person waiting for trial. The price of bail is determined by what the judge believes will guarantee return to the later court dates. Many people are locked up on bail for minor crimes, without even being convicted yet. Bail has become a tool used to further the sentencing disparity between rich and poor. The current conversation about bail reform is primarily focused on the effectiveness and validity of risk assessment tools. Risk-assessment tools are statistical algorithms used to determine the danger and flight-risk of a defendant. While risk-assessment is a necessary step in the bail-setting process, the effectiveness of risk-assessment tools is contested. Many experts agree that reforming risk-assessment tools is the most important step to take in bail reform. I believe that reform efforts need to be directed at the structure of the bail-system as whole, not just a single aspect of the bail-system.
A closer look at the risk-assessment issue
Current risk-assessment methods have produced conflicting results; with some area’s of the US finding success and others finding a distinct lack of success. The core of the disparity between these results lies in the factors used in the risk-assessment algorithm. Originally, the algorithms used “historical data” which means that “Jurisdictions often do not measure the changing landscape of actual risks their defendants face (Koepke, 1730).” Another criticism of algorithms is the lack of transparency found in algorithms leads to the feeling of a false sense of objectivity. A direct conflict in results can be found through the study of Broward County, Florida. Broward County felt pressure to ease the growing numbers in their jails, so they attempted to reduce the amount of defendants detained for bail. Broward County doubled their budget for Pre-trial Release Services (PSAs). And how do Pre-trial Services work? They use statistical-risk analysis tools. On top of that, the PSA discloses that “The PSA does not rely on factors such as race, ethnicity, or geography (Smith).” The transparency from Pre-trial Services removes a little bit of the sense of false objectivity elicited from algorithms. A few years later in Broward County, their “Commission voted to significantly scale back the use of PSAs (Billings, 1338).” The resulting consequence was a severe increase in incarceration in Broward County. These findings presented by Billings extend far past the domain of correlational relationships and into the realm of causal relationships. Locally, the use of PSAs in Mecklenberg has shown that “bail reform can reduce pretrial detentions without significant impacts on [failure-to-appears] and public safety (Smith).” Many places show improvement through the use of PSAs and statistical risk-assessment tools. While Koepke and Billings presented studies that produced directly conflicting data, an underlying theme found in both of their articles is the acknowledgement of an issue with the bail-system and the need for bail reform.
Deriving the bigger issue through the risk-assessment issue
Koepke is misguided with his criticism of the risk-assessment tools, which leads to the conclusion that other factors affect the bail imprisonment rate more, namely the economic interests of the bail bond industry. Koepke’s main point that “using one jurisdiction’s data to predict outcomes in another is an inherently hazardous exercise,” is true to not applicable to counties creating new risk-analysis algorithms. Since borrowing a different jurisdiction’s algorithm is essentially the crux of Koepke’s argument, his argument is becoming out-dated. Despite the out-datedness of Koepke’s study, all of the studies supporting the use of risk analysis tools have a common factor: they study risk-analysis through the use of PSAs. As noted in the Mecklenberg study report: “[The study] does however suggest the limited impact of the PSA itself. Specifically, most of the changes in pretrial conditions occurred at the initial appearance before the magistrate, where the PSA wasn’t used,” meaning we can’t extrapolate the risk-assessment algorithm’s role in the results presented from the role of the PSAs as a whole. As risk-assessment cannot be proven to be the cause, the root problem must be different than originally suspected. A broader look at the bail issue quite readily reveals the economic cause for bail-setting discrepancies, namely the bail-bond industry. Our earlier example of Broward ““In the year preceding the vote to scale back PSAs, bail bond companies donated thousands of dollars to county commissioners’ campaigns.” The economic incentive for bail-setting is what sustains the bail discrepancies, so focusing reform efforts on a risk-analysis method as opposed to policy change is like focusing money on hiding the symptoms of a cold rather than attacking the cold itself. Policies to limit the influence of bail-bonds in the bail setting process would help to reduce the core incentive to set bail at a higher price.
Focusing on the specific story of the Mecklenberg County reform leads to a broader view on the issue of bail. Removing the specific focus on the singular aspect of risk-analysis to the broader focus on the bail-bond industry and related policy, allows a veil to be lifted from the issue. Just as the whole prison-complex is a combination of economic interest and bias, the specific issue of bail is governed largely by economic interest and bias.
Honor Code: Douglas Deutsch
Bibliography
Billings, Thanithia. “Private Interest, Public Sphere: Eliminating the Use of Commercial Bail Bondsmen in the Criminal Justice System.” Boston College. Law School. Boston College Law Review; Newton Centre 57, no. 4 (2016): 1337–65.
Koepke, John Logan, and David G. Robinson. “Danger Ahead: Risk Assessment and the Future of Bail Reform.” Washington Law Review; Seattle 93, no. 4 (2018): 1725–1807.
Smith, Jessica. “Study: Mecklenburg County’s Bail Reforms Lead to Increased Release Rates but No Significant Increase in FTAs or New Criminal Activity.” NC Criminal Law Blog | UNC Chapel Hill School of Government (blog), June 20, 2019. https://nccriminallaw.sog.unc.edu.
Vizzuality. “Public Safety Assessment (PSA).” Accessed November 13, 2019. https://psapretrial.org/.
