Brentin Mock is a staff writer at CityLab. He was previously the justice editor at Grist.
A new report shows how far the rest of the U.S. has to go to catch up on bail reform.
On Monday, October 31, former Trump aide Paul Manafort was charged with felony crimes of, among other things in his 12-count indictment, money laundering and conspiring against the U.S. A judge imposed a $10 million bond on Manafort, and $5 million for his alleged co-conspirator Richard Gates, to ensure that they would return for a court trial. Special counsel Robert Mueller told the judge that both were “serious” flight risks given their wealth and the high-level crimes they’re allegedly involved in. But Manafort and Gates both walked out of court without having to pay a penny and were back home the same day, though on house arrest. Since they haven’t been found guilty of any crimes yet, perhaps this is fair. This is, after all, how the criminal justice system is supposed to work: innocent until proven guilty.
Except this is not the normal way the system works for people who are not wealthy or white like Manafort and Gates. In 2015, while most in New York City made bail within a week, there were still thousands who toiled in jail for weeks because no bond was posted—many who remained for months and years.
As Andrew Cohen points out in Esquire.com, the news evokes memories of Kalief Browder, who languished in Riker’s Island for three years because his family couldn’t afford bail. When finally released, he was mentally tormented from his experience inside and he committed suicide.
Nearly two-thirds of the people in jails in cities across the U.S. are there waiting for a trial, which means they haven’t been convicted of any crimes. This constitutes 95 percent of the growth in the jail population since the late 1990s according to the Pretrial Justice Institute. U.S. Supreme Court Chief Justice William Rehnquist once said bail should be used only sparingly. PJI’s new “State of Pretrial Justice in America” report states that the opposite of that has been true, and it doesn’t have to be that way.
There are tools available that judges can use to size up a defendant and determine whether they’re a flight risk. These tools use data based on the defendant’s crime (whether it was violent or non-violent) and other factors. Some of these tools also can help judges determine a bail amount that is actually in the defendant’s affordability range, assuming the defendant should be assessed bail at all.
The algorithms used in the risk assessment tools run the risk of perpetuating underlying racial biases. But they are arguably more scientific than the alternative: For most of history, judges determined flight risk based on nothing more than a hunch. More often than necessary, they were determined by race: African American defendants were found more likely to be detained before trial in New York because they couldn’t make bail in a 2014 study.
The new PJI report grades states based on how well each of them is taking advantage of pretrial assessment tools that help judges make more precise decisions about who should and shouldn’t be held. New Jersey is leading the charge on this front. It was the only state awarded an “A” in the report, in large part because it is one of only a handful of states in which every one of its counties utilizes validated pretrial assessment tools (the other states are Arizona, Connecticut, Kentucky, Rhode Island, and Utah). It is also the only state in the U.S. that has almost completely eliminated cash bail from its pre-trial system—meaning nearly all defendants are exempt from putting up cash to avoid being detained in jail until trial.
Organizations such as the Drug Policy Alliance and the New Solutions Campaign overcame heavy pushback from the bail bond industry to convince Governor Chris Christie, a former U.S. Attorney, to sign a package of bail reform bills into law in 2014. Those laws officially kicked in this year and have proven effective in reducing New Jersey’s jailed population.
In 2013, 73.3 percent of the jail population was there for pretrial purposes. Also, 71 percent of the jail population was black or Latino that year, and 38 percent of them were there because they couldn’t meet bail conditions.
Since judges began implementing pretrial diversion tools, which they started doing even before the bail reform bills passed, the number of unconvicted people in jail has dropped by 34.1 percent, according to the PJI report. Meanwhile, crime in New Jersey has dropped considerably in every category. This undercuts the argument by supporters of bail that releasing people before trial threatens public safety because they could commit new crimes. Still, the bail reform industry has launched a legal challenge noting that some individuals released were arrested for other crimes.
Testifying before the New Jersey senate’s budget and appropriations committee earlier this year, Judge Glenn A. Grant, the state’s acting administrative director of the courts, said:
It is important to remember that no criminal justice release system can absolutely guarantee that every defendant released pretrial will obey the law or and will show up for court. The former system of cash bail certainly offered no such guarantee. Under that approach virtually all defendants were entitled to bail, and defendants who were able to post bail, regardless of their risk either to reoffend or to fail to appear in court, were released back into the community with no monitoring whatsoever.
Under Criminal Justice Reform, we have removed money from the equation and instead have an honest and direct conversation about whether a defendant is a risk to the community. For the first time, prosecutors can now file motions seeking to have high-risk defendants held until trial. For the first time, judges can decide to release defendants for monitoring by a newly created pretrial services until until trial. And for the first time, low-risk defendants no longer have to linger in jail for months at a time because they cannot afford to post even modest amounts of bail.
Juxtapose that with a state like Louisiana, which scored an F on the PJI report, as did 16 other states. As a result, Louisiana is holding close to 30 people in pretrial detention per 10,000 residents, the highest rate in the nation. The second closest is New Mexico, which detains 21.8 people per 10,000 residents for pretrial purposes.
New Orleans has been experimenting with pretrial diversion programs and scaling back cash bail and other court fines as well. As recently reported in CityLab, these programs have been showing what New Jersey realized when it started its reform programs: That finding alternatives to detention for the unconvicted has proven no threat to safety or led to an increase of people skipping trial. This has also reduced New Orleans’ incarceration costs.
While 30 states were given a D or F in the PJI report, this work is still expanding, spurred in some places by action at the local level. In Cook County, Illinois, where Chicago sits, courts now operate under new rules that require judges to consider a defendant’s ability to pay before setting bonds. The counties of King, Spokane, and Yakima in Washington are all using pretrial assessment tools to prevent unnecessary detentions and arrests. In New Mexico, voters approved a constitutional amendment last year that forbids detaining people pretrial because they can’t afford to post bail.
Four years ago, only ten percent of the population lived in jurisdictions that offered these kinds of services. Today, 25 percent of the population does. Still, at least 75 percent of the time, a poor person is being held in jail for a petty offense, while Paul Manafort is going home.
This article is part of our project “The Presence of Justice,” which is supported by a grant from the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge.