“Jail and Bail” by Gareth Simpson

October 2, 2017; Cleveland Plain Dealer

The Laura and John Arnold Foundation has come under fire for its bail reform program. The foundation, whose mission is to strengthen “social, governmental, and economic systems,” is the target of a lawsuit filed in the aftermath of a killing where the judge’s use of the foundation’s Public Safety Assessment (PSA) tool led to the release of the suspect on a previous charge. The tool is now employed in more than 30 counties.

The aim of the Arnold Foundation’s PSA is to make release contingent on an assessment of risk rather than of one’s bank balance. Judges set bail based on criteria drawn from careful research on probability to appear, not financial means, thereby reducing discrimination against low-income suspects, who in many cases cannot afford to be released. This is part of an effort to reform all of criminal justice in a way that observes the principle of equality under the law.

The tool is described in brief here:

The PSA was created using a database of over 1.5 million cases drawn from more than 300 US jurisdictions. We analyzed the data to identify the factors that are the best predictors of whether a defendant will commit a new crime, commit a new violent crime, or fail to return to court. These factors include whether the current offense is violent; whether the person had a pending charge at the time of the current offense; whether the person has a prior misdemeanor conviction; whether the person has a prior felony conviction; whether the person has prior convictions for violent crimes; the person’s age at the time of arrest; how many times the person failed to appear at a pretrial hearing in the last two years; whether the person failed to appear at a pretrial hearing more than two years ago; and whether the person has previously been sentenced to incarceration. The PSA does not consider factors such as race, gender, level of education, socioeconomic status, and neighborhood. The PSA is more objective, far less expensive, and requires fewer resources to administer than previous techniques.

The issue of bail has long been something of an outlier even among criminal justice advocates, and reform efforts are vulnerable to claims such as this. But the opposite case, erring on the side of safety by incarcerating folk of primarily low incomes, is far from airtight when the issue is studied systematically. Being held for not being able to afford bail has real, lasting impacts on the accused. As Jon Schuppe’s in-depth profile for NBC News this past August relates, “The poor are far more likely to get stuck in jail, which makes them far more likely to get fired from jobs, lose custody of children, plead guilty to something they didn’t do, serve time in prison and suffer the lifelong consequences of a criminal conviction. Those who borrow from a bail bondsman often fall into crippling debt. At the same time, the wealthy can buy their way out of pretrial detention on just about any offense, including murder.”

Added to this are the dangers posed to the accused—who, we may recall, remain in our legal system innocent until proven guilty—from being held with criminals, some of them violent. Some evidence even suggests that those held on money bail have higher recidivism rates and rates of conviction than those not.

And then there are also the financial interests at work in the system.  A primary beneficiary of the current system in many places are bail bonding agencies. Perhaps not coincidentally, a bail bonding firm is sponsoring the lawsuit against the Arnold Foundation.

This case is particularly important, as it could lay the groundwork for future cases against jurisdictions that use an actuarial system. A ruling in favor of the plaintiff could expose other jurisdictions to similar lawsuits that would stymie the progress of non-money bail programs. Luckily, the Arnold Foundation, as opposed to an advocacy nonprofit, presumably has the assets needed to fight this case.—Sean Watterson and Ruth McCambridge