How Bail Traps the Poor in Jail with Scott Shackford
2018-07-27 · Guest: Scott Shackford (Reason magazine) · 51:34
American cash bail system and criminal justice reform
Bob Zadek and Scott Shackford discuss the systemic issues within the American cash bail system, highlighting how it effectively penalizes poverty and undermines the principle of “innocent until proven guilty.” They explore the economic consequences of pretrial detention and examine New Jersey’s successful transition toward a risk-based assessment model that utilizes data and improved communication instead of financial requirements.
Topics: Cash Bail, Criminal Justice Reform, Pretrial Detention, Eighth Amendment, Bail Bond Industry, New Jersey Bail Reform, Risk Assessment Algorithms, Judicial Bias
Speakers: Bob Zadek, Scott Shackford
Introduction to Cash Bail [00:00]
Bob Zadek: Hello everyone, welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show on all of radio. The show has been for about 13 years, always the show of ideas, never the show of attitude. Thanks so much for listening this Sunday morning.
Americans take pride in the first principles of our country: life, liberty, pursuit of happiness, as Jefferson wrote in the Declaration of Independence. However, you proud Americans out there, how would you feel if you lived in a country where freedom has been so cheapened that it can be bought? Indeed, sometimes it’s only available if you buy it. We live in a country where freedom for many Americans can only be purchased. We are talking this morning about the subject of cash bail.
All of you know about bail in the most general of terms. You know it’s something you have to pay if you are caught committing a crime or accused of committing a crime, and your choice is bail or jail. But let’s look under the hood this morning of the system of bail in America. You will be enraged, you will be surprised, and you will be embarrassed. And you will feel the same intensity that this morning’s guest, Scott Shackford of Reason magazine, has felt when he wrote an important piece in the magazine: “Innocent Until Proven Guilty, But Only If You Can Pay.” Scott, welcome to the show this morning.
Scott Shackford: Thank you for having me. Good morning.
Bob Zadek: Good morning. Now, Scott, just to introduce and to have our audience appreciate the importance of the subject of bail in general, cash bail particularly, bail was important enough to our founders to have found its way into the Bill of Rights as part of the Eighth Amendment to the Constitution. And in the Eighth Amendment to the Constitution, the statement which our founders gave us was quite clear: quote, “Excessive bail shall not be required.” And “shall not,” of course, can be read as “may not be required.” So the founders felt the subject of bail was pretty gosh darn important. It was important then, and it is important now. Tell us the thesis of your piece in Reason magazine, “Innocent Until Proven Guilty, But Only If You Can Pay.”
The Evolution of the Bail System [01:45]
Scott Shackford: Yes. So, people know that we have a system of bail. That’s about all they know. What people know is that when people are arrested for a crime, they go before a judge, and the judge just decides whether or not they can be free before they actually have their trial. But people generally don’t quite understand how it works. And the system has become, over a period of time, really a mechanism for keeping people behind bars.
So we have a system called the arraignment, where someone who’s been charged with a crime will go before a judge, and the judge will determine, with feedback from prosecutors and a defense attorney if there’s one there, the circumstances by which this defendant will be allowed out of jail prior to trial. And over time, judges have frequently come to depend on cash bonds, money bail—the idea that if you give the government X amount of dollars, you can go free until it’s time for your trial. And there’s two reasons—well, the main reason for this is to make sure that they show up for trial. You know, that they show up for the court dates, that they don’t skip town. So we have these bounty hunters, that’s why we have the bail bond industry, to make sure that people come to the court to face trial.
Bob Zadek: Now let me just interrupt, Scott, because you made a very important point that I want to be sure that our friends out there appreciate the importance of what you said. At the time you are arrested and you’re arraigned, you haven’t been convicted of anything. Therefore, you are, in general, as entitled to be free as anybody else on the planet. However, society decided—has decided, probably correctly—that there is a greater likelihood that you will disappear if you hang around, you’re going to be tried and maybe convicted. Therefore, society has decided that if you put up a security deposit, if you leave your driver’s license when you rent the bowling shoes, if you do something to make sure you’re going to show up, then society is better off. This has nothing to do with punishment. This has to do with a very specific concept: we want to be sure you show up. So you’re not—there’s nothing you did so far that requires you to be jailed, and that is important to bear in mind as Scott goes on with his story.
Scott Shackford: Right. So what has happened over time is courts have become more and more and more dependent with using bail schedules as just this sort of default mechanism without a tremendous amount of consideration or discussion of whether or not an individual is an actual flight risk. What happens is defendants will come in, here’s the list of charges, here’s the schedule. And so what happens is your risk is assessed on the basis of how much of a penalty you can face if you’re convicted. There’s a certain kind of logic to it that has backfired tremendously. So, the more charges you face, the more time you potentially spend up in jail. And so the judge is going to look—and so the idea is the more time you potentially face in jail, the more they’re concerned that you’re not going to show up for trial. So what happens is the amount of your bail is set not on the basis of whether or not you’re a risk of flight or whether or not you’re a potential danger to your community, but on the basis of the charges that you face. So essentially, you’re being treated like you’re guilty of those charges in advance. And that is determining how much you have to pay in order to be free.
The end result is that we have hundreds of thousands of Americans who are in jail prior to being convicted. We have about 2.2 million people in prisons and jails in America on any given day, and between 400,000 and 500,000 of those people have not been convicted of a crime. They’re there waiting for their trial.
The Bail Bond Industry and Financial Burdens [03:30]
Bob Zadek: So they are in jail simply because—not because they’re worse than those who are not in jail, they’re worse people or they did worse acts—they are in jail simply because they didn’t have the financial resources to post bail. Now, when you post bail—and this is an important part of your research—when you post bail, we start with the concept you’re required to put up money or mortgage your house, put up some property of yours or somebody else’s to make sure you will show up. But most people don’t write the check because they don’t have that much money. So that brings us right into the bail bond industry. And what are the economics of that? How does that work, and how does that play into the system of cash bail?
Scott Shackford: Yeah. So, bail is thousands of dollars. It’s thousands of dollars that you have to put forth. About half of the people who can’t afford bail, who are in jail right now, can’t even afford like $5,000 bail. So they’re simply in there because they simply can’t afford to pay this amount. So if you have a $50,000 bail that you’ve been ordered to pay if you want to be free, you can put forth the $50,000, so that if you make all of your court dates, you will get that money back. You can also, in many states, pay a bail bondsman typically around 10% of that amount. The bail bondsman will cover your full bail. And so you would pay—if it’s a $50,000 bail, you pay the bail bondsman $5,000. The bail bondsman covers you. The bail bondsman is responsible for you in the court. And so if you skip out, the bail bondsman needs to either bring you in or the bail bondsman is responsible for $50,000 to the court, which is an incentive to make sure the bail bondsman shows.
You never get that $5,000 back that you paid to the bail bondsman, even if you’re found innocent, even if the case is dropped entirely. You never get that $5,000 back. And so this has become a tremendous sort of economic situation that has caused really a lot of attacks on the bail bond industry. I try to be careful about not making the bail bondsman the villain here, but for a lot of people who are in favor of bail reform, they really see the idea that this bail bond industry is profiting billions of dollars off of people who have to give them money or sit in jail, and those are their choices.
Bob Zadek: Well, of course they’re not profiting off—that sort of stacks the deck against them. They are providing a service because one would—I would—we all know that if there wasn’t a bail bond industry, then all those people who have the premium but not the cash bail would be in jail. So in point of fact, the bail bond industry in effect provides some people who can afford the premium a freedom when the alternative would be incarceration.
Scott Shackford: Right. So there’s—yeah, the reason I try to avoid making the bail bondsman the villains when I’m writing about this is because the issue is the tendency toward incarceration. The issue is the drug war. The issue is we have this criminal justice system that is very, very casual about arresting and putting people behind bars in the first place. One of the discussions, the debates I’ve had speaking with bail bond representatives, and they—when they’re fighting back against some of this reform, one of the arguments is that people should have a constitutional right to pay cash for bail if they want to. And when pressed, they’ll say, “I don’t necessarily think that everyone should have to pay cash bail,” but they argue that cash bail should be a choice that defendants should get to make.
The Human Cost of Pretrial Detention [04:45]
Bob Zadek: So therefore, we have the—so now we have a defendant who gets arrested because somebody thinks he might have done something. There is enough evidence to induce the police to arrest and for the—at the arraignment for the judge to say, “Yes, this is not random, there is enough going on to invite a suspicion that he might have done it,” and therefore he—the defendant—gets into the system. And now the first choice: this defendant, very often somebody without a lot of financial resources, is told, “Okay, you’re in jail or you post bail.” And now we get to the thrust, the guts of Scott’s research. So now you’re in jail or not depending solely upon how much money you have. If you don’t have enough money to post bail or to pay the premium, then that’s the only determining factor that decides jail or freedom. That’s it. And that becomes—that’s where the rubber hits the road in Scott’s story. Now, Scott, tell us about—because you highlight in your piece in Reason, you highlight lots of stories and circumstances about how damaging this can be. Remember, remember: the defendant is innocent. But what happens to this innocent defendant whose only crime that we know about so far is doesn’t have enough money to pay the bail premium or, of course, to post the cash bail? So now what happens to this person who’s only difference from you and I, Scott, is they have less money? What happens to that person?
Scott Shackford: Yeah. So studies show that just three days in jail really starts to affect your life and your economics, your personal economic situation. The story I used actually for my piece actually originates from San Francisco, as a matter of fact. A gentleman who is a cab driver, now retired, in his 70s. He was having a conflict with his neighbors, a couple of young men with a tendency toward partying. And one day he had had enough and decided to go next door to confront him. He did something that he acknowledges he really, really, really, really should not have done, and that was to bring a gun with him. Fortunately, nothing happened, the confrontation didn’t happen. Apparently one of the young men saw him through the keyhole, saw the gun, did not open the door. But this is a serious thing to have done, and he acknowledges that now, even though he did it out of anger.
So police came, he was arrested. He was willing to confess to brandishing a weapon. He acknowledged from the front that he had a gun, he shouldn’t have brought it there, he knew that what he was doing was wrong. But instead, the prosecutor decided to file all sorts of charges against him, including attempted murder. They were heavy, heavy felonies where he was facing 17 years in jail if he was convicted. And so the judge saw all of that and he gave him a bail of $625,000. And the judge’s argument was that the judge believed that he—he had never—he had no criminal record. He was in his 70s, this was the first time he was ever arrested. And so, but the judge declared that he was a threat, he couldn’t go back—he was afraid that there would be some additional confrontation if he allowed him to leave, called him a flight risk because of the amount of time that he faced. And so he had this huge, huge bail that he couldn’t pay. So he spent the entire time behind bars waiting for his trial. It was nine months all last year. He spent months behind bars. And in his case, a jury completely exonerated him. The prosecutor had piled on all of these charges, and they required the prosecution to show intent that he actually intended to hurt, and the judge didn’t.
So he spent all this time behind bars, he was found innocent, but he lost his taxi medallion. So he had to give it up. He couldn’t pay for it. He was poor, it was his only source of income. And so he almost got evicted. He was able to fortunately keep his place. Of course, part of the reason for the eviction was he brought a gun and confronted his neighbors in the same building. But he was able to eventually convince them to stay. So it just affected him economically. And this is what we see. There are studies that show that when you’re trapped behind jail and you’re poor, people lose their jobs, they lose their source of income, it disrupts family, it makes it even harder. There have been studies that show that people who are stuck behind bars are more likely to be convicted of these crimes. They’re more likely to accept bad plea deals or worse plea deals than they would get if they were free in order to fight the charges because they don’t have any leverage, they don’t have any negotiating ability. They’re just stuck there. And oftentimes the system of justice is so slow, if these are low-level charges, they’ll essentially have served their time while waiting for their trial. So what’s the point of fighting anymore?
Coerced Plea Deals and Long-Term Consequences [06:30]
Bob Zadek: And therefore they take plea deals, especially when encouraged to do so by overworked public defenders. They are—let us assume they’re innocent. Remember, they haven’t had a trial yet. But now they’ve been in jail because they couldn’t make bail, that was the only reason. So they’re in jail, they’re in jail for a long time waiting for a trial. And now they’re offered a plea deal, and the plea deal might very well be time served, or they get credit for time served in jail waiting for trial. So they do the plea deal. So now they say, “Okay, I will plead guilty to whatever the charge is.” Now what happens? So now they get out of jail even though they are innocent. But now all of us know the evils that befall you once you have been convicted by a plea deal of perhaps a felony.
Scott Shackford: Right. They now have a record. They now have a criminal record.
Bob Zadek: So now they have a record. They have trouble getting an apartment, except in Seattle, and they can’t—they have to check “yes, have you been convicted of a crime” on a job application, and then all the other data they have to do to live in society. They might not be able to travel anymore because TSA will perk up when you check that box. So their life has been profoundly changed. And remember, in the hypothetical I am presenting, they’re innocent. They’re innocent. They got the short straw and got arrested. But because of the—this all started with the bail system. Because they couldn’t make bail, they didn’t have enough money, their life has been profoundly affected because they could not, as I said in my intro, they could not simply buy their freedom. That is the system that Scott is bringing to our attention this morning.
Scott Shackford: Yes. And these studies and this research shows that if you let these people out of prison, if they don’t need to be there because they’re not dangerous or they’re not a flight risk, they can go back and—you know, and this is how we’re trying to sell bail reform to conservatives, actually. They are more likely to have jobs. They are—over the next—there was a study that was just released earlier this year that kind of researched the long-term effects between people who are freed prior to their trials versus people who are stuck in jail prior to their trials. And people who were freed prior to their trials have a higher employment rate and earn more money. So if you free people, not only are you reducing the cost of the prison-industrial complex on taxpayers, they are also contributing to society, or they are more likely to be contributing to society a couple of years later.
Judicial Bias and the Fear of Headlines [07:30]
Bob Zadek: So, and what we will also—what Scott has discovered and others who promote bail reform is that, of course, judges are human beings. And judges, I suspect, live in somewhat in the dark reaches of their brain, they have fear of some headline where some judge released some defendant who is accused of a crime or gave them low bail or no bail, own recognizance—we’ll discuss that after the break—and this released defendant did another bad act, and the headlines will be that the judge released somebody to threaten society or to harm society, and all attention is focused on the judge. So the judge has a profound bias to set high bail when bail maybe is inappropriate only because he’ll never have a headline because he set bail too high, but she might have a headline if she set bail too low.
Now, here—that is the problem. There is some very interesting bail reform measures working its way through the system and have been tried, some with success, some with not success. And what’s most interesting about this is that it has somewhat of bipartisan support. We will learn after the break that none other than Senator Rand Paul and Senator Kamala Harris have joined forces to initiate some very interesting bail reform measures. We’ll learn about the bail reform measures, we’ll learn about protective detention, the other side of bail, when we come back. We’ll be taking a one-minute break. Lots more to follow. Please stay tuned.
[Commercial Break]
Bob Zadek: Welcome back to the Bob Zadek Show, the longest-running live libertarian talk radio show on all of radio, now in our, I guess, 13th year. Thanks so much for listening everyone. This morning we are talking with Scott Shackford. Scott is an associate editor at Reason.com. He covers tech surveillance, privacy, criminal justice reform, LGBT issues, national security policies, and sometimes wedding cakes. Scott, you have a busy agenda out there. That’s lots of stuff to cover. You must not sleep that much.
Of importance to us this morning is Scott’s wonderful piece, “Innocent Until Proven Guilty, But Only If You Can Pay,” where Scott discusses the abuses and the need for reform in the subject of bail and excessive bail. Bail, as I said in my introduction, is the ugly underbelly of the American criminal justice system because it reduces us to a society where you have to—the only way to have your freedom under certain circumstances is if you can afford to buy it. How offensive is that?
Now, Scott, we talked before the break about the purpose of bail, the primary purpose of bail being to make sure you show up for trial. Not to punish you, not to incarcerate you, but only as a security deposit to make sure you show up for trial. And therefore the only issue before the court is to make sure that you are not a flight risk. And if you’re not a flight risk, you shouldn’t have to put up any money. However, courts go beyond that as you have pointed out. Now, that’s not quite the whole story.
Protective Detention and the New Jersey Model [10:00]
Bob Zadek: There is, as part of the bail system, another reason for a judge to consider in deciding bail, and that is the subject of protective detention. And that maybe—the importance of that perhaps is exaggerated, I’ll leave the audience to decide that. But tell us about the related topic of protective detention.
Scott Shackford: Yeah. So one of the other issues that judges really worry about—and you talked about it right before the break—was whether or not the authorities or the government can make sure that this defendant, if this defendant is charged with a serious crime, whether or not they can make sure that this defendant is not going to commit other crimes. Even assuming the defendant is innocent, there’s nevertheless a public safety concern that if someone is charged with a crime and they’re out on the street, they may do things like attempt to interfere with the trial or commit—like if someone’s charged with drug crimes, and we can talk about whether or not anyone should be charged with drug crimes, of course—but if someone’s charged with dealing drugs, whether they’ll go back to dealing more drugs if they’re released.
So when bail reform started to come around and really started thinking about it, one of the things that happens in a lot of states is you do have a constitutional right to be free prior to your trial unless the courts decide that you’re going to run away or that you’re a danger. What happens in a lot of states, though, is that they have constitutional requirements for bail, or this requirement that they be allowed to be free does not take into account the nature of the crimes they’re charged.
So I’m going to go to New Jersey because New Jersey is completely changed its bail system and they’re being seen as a potential model for other states. So in New Jersey, New Jersey’s constitution required that unless someone was charged with a capital crime, they be offered bail of some sort. There had to be either money bail or some opportunity for them to get out of jail prior to trial. And the end result of this was that some very, very, very dangerous people who had not yet been convicted, obviously, but they had a lengthy history of violent, dangerous behavior, they were known members of gangs, they were stalking girlfriends, things like that—people with chronic dangerous behavior still had to be offered bail.
And so when New Jersey was developing this idea of reforming their bail system, they actually had two goals. One is to make it possible for these low-level people who were being charged $5,000 bail that they couldn’t afford could get out of jail if they were not a threat to the community, if they were not a flight risk, and most of them are not flight risks. But the other goal—and this is how they got people like Governor Chris Christie (he was governor at the time when they passed this legislation), where they got some conservatives and tough-on-crime folks to support it—was that we can change our constitution to institute that if someone is charged or if someone is believed to be a danger to the community, we don’t have to offer them bail at all. So now it’s an environment where New Jersey is in an environment now where either you are released with a whole bunch with conditions or you’re not, and money isn’t a factor.
Record-Breaking Bail and the Flight Risk Myth [11:30]
Bob Zadek: And New Jersey, which of course is—we’ll talk about what bail reform looks like because I hate to present a problem without having a really smart guest such as Scott who can present also the problem, but the solution, or else you turn off the show after the hour and end up really depressed. I don’t want people to think it’s hopeless. We always will—we will try to have solutions when we present problems. But New Jersey is in the forefront.
But judges have always considered both whether you’re a flight risk and, as they should, whether even though you may not be a flight risk, you’re a pretty bad character and therefore you are a danger to society if you are allowed out. So the judge will make a finding—and this is a very small subset—that no, you’re not a flight risk, therefore shouldn’t impose bail. However, you are a threat to society and therefore I am going to—I, the judge, am going to impose high bail, not because you’re a flight risk, but because I have to protect society from you. It’s almost—that’s of course one of the reasons for conviction and for incarceration is to protect society. But here you’re using that at an earlier stage before you are convicted.
And as a fun fact, Scott, I don’t know if you know the answer to this. I have done an unofficial check, and who is the individual against whom the highest bail in the history of the planet was ever imposed? Do you know that?
Scott Shackford: Ah, you got me there. You got me there.
Bob Zadek: It was Durst. When Durst was arrested in Texas—we all know about the Durst, the scion of the Durst real estate family in New York, and of course he was the subject of a wonderful TV series—when he was arrested and accused of killing, I think, his former wife or his roommate in Texas, he was arrested. The bail was set at $3 billion with a B. So he has the record, I think, in society for the highest bail, which he didn’t post because he was famously quoted as saying when he was asked about a $250,000 bail, he said, “Well, of course I’m going to pay the bail and of course I’m going to run away. Don’t be silly. What’s $250,000? It’s like a rounding error to him.” So they imposed it at $3 billion.
And one other bail story to highlight Scott’s point about how bail often has little to do with whether you are a flight risk. There was—if we remember the killing at Stoneman Douglas High School in Parkland, Florida, back earlier this year, the brother of the accused, Nikolas Cruz—you may remember this, it was in the news—his name is Zachary Cruz. He was accused of trespassing on the school grounds of Stoneman Douglas High School, and when he was arrested for trespassing on the school, the judge set his bond at $500,000 for—and it was a single misdemeanor offense. And talk about excessive bail. So those are the two bail record-breaking cases that I thought I would bring to our friends out there’s attention.
Risk Assessment Algorithms and Better Communication [12:45]
Bob Zadek: Now, Scott, so now we have identified the problem. And I should mention also, Scott, I got a tweet yesterday from one of our listeners, and the person sending the tweet, the follower of my show, asked if you know—and of course we’re probably not going to have statistics on this—how many people have lost their jobs or perhaps even their homes simply because bail has been set too high? And the listener also asked if you know who profits from the bail industry? I think that’s pretty obvious, it’s the bail bond industry. But any thoughts on those two questions?
Scott Shackford: Yeah. So, yeah, we don’t really have reliable stats. It’s a thing that’s been as bail reform has been moving, people try to get more and more information. And, you know, some of the challenges is how states—states have their own systems and so your experiences vary wildly from state to state. And so even the study that I talked about earlier showing the economic consequences, the differences in the economics, the personal economics of people who are detained versus people who are freed, are based on like two metropolitan communities out of the entire country. So we really don’t have widespread numbers.
The Pretrial Justice Institute, which is an organization that’s devoted to helping develop pretrial tools that can be used as alternatives to cash bail, they’re the ones who came up with the “three days count.” And there’s a lot of research that says that if anyone who’s in jail for more than three days, it really starts to affect their personal lives, their ability to keep jobs, their ability to make house payments and to pay rent. And it escalates particularly when you are poor. And that’s like the nastiest component of this is that the poorer you are, the worse it is if you’re stuck in jail. Because if you’re an impoverished person, you probably—if you don’t have a lot of job skills, the way that you survive is you use your body, you know, you are in a low-wage job where the most important thing is for you to be there to do the work. You know, if I end up in jail, I could probably—well, depending on the jail, I mean, I could write from prison. But a lot of really poor people can’t do that, and so they lose their jobs simply because they physically can’t be there.
As for who pays, obviously we talk about the bail industry, but one of the things I would want to point out is, of course, that money flows to the court system. You know, the court systems themselves get paid. I was actually just looking at some stats yesterday and I think the Los Angeles collected—just the Los Angeles courts collected somewhere around $190 million last year from people putting up bail. And so the court system also profits, or the court system funds itself through bail, and it creates sort of incentives again for prosecutors to really lay down charges and find ways to make people pay for their participation in the court system.
Bob Zadek: What are the movements—what is—there are some wonderfully creative attempts, successful at that, in reforming the bail system so that we don’t impose yet another burden on the poorest segment of society where their crime may be only that they are poor, and that is why they end up in jail and our listeners do not end up in jail. So what—tell us about the efforts being done around the country to enact and nationally, as I said, Rand Paul and Kamala Harris are working on a bill. What is the approach? What is the way society can be protected, can be assured that defendants show up for trial—we care about that—and yet lives are not ruined in the pretrial phase of the criminal justice system? How do these bail reform measures work? Tell us about the use of algorithms and big data in the process.
Scott Shackford: Yeah. So what’s been happening is our technology has advanced tremendously. Obviously, our ability to communicate with each other. You know, I’m doing this interview with you while pacing around through my apartment, whereas, you know, 20 years ago I would need to call in on a phone or, you know, or even come and visit you at the studio in order to do an interview. So we have so many better ways to communicate with each other. And yet, you know, of course, the government always lags behind in technology. And so one of the problems is we talk about how, “Oh, well, this system—we need to make sure that they show up for trial.” Well, courts historically have not been very good at keeping tabs and communicating outward towards people they’re expected to come in for trial. And that’s actually a service that the bail bondsman did because they had the financial incentive. That financial incentive caused a good bail bondsman to make sure that defendants had the information they needed to show up in court.
So as part of these reforms—and we’ll go back to New Jersey—so New Jersey implemented a system that first of all had a tremendous amount of communication. And they instituted a pretrial justice system—their own pretrial services office—to communicate with defendants. And so when someone is released from jail in New Jersey, they have orders to communicate with this office on a regular basis so that they can keep track of them, they can be informed and stay informed of where they’re supposed to go, where they’re supposed to be, when they’re supposed to show up, if there are any changes, you know, to make sure that the defendant shows up. And that’s been successful in increasing the likelihood that someone shows up for trial. One of the things that people discovered is sometimes when someone—when a defendant doesn’t show up for a court date, it’s not always the defendant’s fault. Sometimes the defendant has bad information because there’s been poor communication or the defendant doesn’t know where to go. So the first thing was, you know, to establishing this better way of communicating with defendants so that they understand what’s supposed to happen for their next steps involved in the court.
The next step is to figure out who’s—you know, trying to come up with better systems than just a simple bail schedule, figure out who should be allowed to be free. And that’s where we talk about algorithms. So in New Jersey, they’ve been working for years to implement this system. New Jersey, for example, Governor Christie—Chris Christie—was still the governor when they started this plan, but they only implemented it fully in 2017. So it was a while before it all went in. And so what happens in New Jersey is you, for example, if you get arrested, you’re brought into jail. In this pretrial services office, they have all these computers. And so your name is fed into a system, into their computer, and it pulls up your background, your criminal background. And there’s an algorithm that’s been developed, and what this algorithm does is it calculates your risk factors. Those two risk factors that we talked about: whether you’re going to skip out on the court and whether there’s a risk you’re going to commit other crimes. Even assuming the defendant is innocent, there’s nevertheless a public safety concern.
And so it’s based entirely on your own history. So the risk of, you know, if you have a history, if you’re someone who’s been arrested previously and you have not showed up for court dates, it’ll flag that and it’ll show up in your risk assessment. If you’re somebody who has been convicted and sentenced for violent crimes in the past, it will show up and it will increase your risk factor. And all of that information goes to the prosecutor, it goes to the defense, and it goes to a judge. And so within 48 hours in New Jersey, you will go before a judge to determine whether or not you’ll be released immediately or if the prosecution wants to make the case that you’re dangerous or a flight risk, they’ll set a next hearing to determine whether or not you will be detained.
In my story, I actually attended some of these hearings in New Jersey at the Paterson courthouse in Paterson, New Jersey. And so everyone gets these algorithm numbers and they’re on a scale. Now they don’t—and this is going to be important because there’s going to be debates on how the reform plays out—they don’t just make decisions based on these numbers. They’re going to get these numbers from this algorithm that determine risk. What that does is it informs the judge’s decision, informs the prosecution and the defendant, it doesn’t make the decision. So what will happen is there’ll be a discussion. If the risk category—if the risk numbers are low, the judge will probably—and the prosecutor doesn’t object—the prosecutor will release them with, you know, with instructions of how frequently they’re going to communicate with the pretrial services division to make sure that they know what they’re supposed to do next. If they have a higher risk factor and the prosecution believes they want to keep him or her behind bars prior to trial because they think that he’s a threat or a flight risk, they have to—there’s a detention hearing where it’s sort of like a mini-trial, a very, very small mini-trial, where the prosecution attempts to convince the judge that this person is—that there’s no way, that there’s absolutely no way to make sure that the defendant will show up for trial or that the defendant won’t commit further crimes or interfere with the case if he or she is free. And then the judge makes a call.
I attended one of these hearings where they were trying to keep a gentleman who was caught with all sorts of heroin and cocaine as a potential dealer. And the prosecution wanted to make the case, but there were no guns found. The gentleman had a criminal history, but it was a very old criminal history. He hadn’t gotten into trouble in recent years. So all that information above and beyond the algorithm, the judge has all that, and the judge made the decision to release the guy but with very strict requirements for him to stay in touch with the pretrial justice system. If they lose track of him, if he doesn’t show up or communicate with them when they’re expecting him to, he’ll get yanked back in and could possibly end up going to jail. So essentially, the short version is courts need to do a better job of communicating and keeping track of defendants if they’re going to release them from jail.
The Cost-Benefit of Reform [14:30]
Bob Zadek: What strikes me in your story as astonishing is that here we are, Scott, you and I are discussing this reform as if it was a breakthrough. And all you have told us is the courts are adopting on probably the most important decision a court can make: does somebody go free or is their liberty denied them? What could be more important than that? Certainly more important than property rights. And yet we are—we have these “breakthroughs” which are simply the court system adopting a system which credit granters have adopted for a decade in deciding who gets credit, simply processing available data, doing an intelligent job in building the predictive algorithm, doing nothing more than Google does, nothing more than any merchandising company does, nothing more than a bank does, simply using available tools. And yet it goes in the headline, it goes as a headline as a “reform,” like we’re putting a person on the moon or on Mars. It’s astonishing to me how slow to change, how resistant to change the judicial system is on the most important function they perform, which is: do people get denied their freedom or not? It should be routine, it should be boring, it should not be the subject of a one-hour show on a Sunday morning just that courts have figured out a way to not improperly deny people their freedom. That to me is the takeaway of all this. It makes me angry that this has to be a reform instead of just the government doing its job to assure people who deserve to be free to make sure that they are free.
Scott Shackford: Yeah, and the amazing thing is how expensive these reforms are going to be because of this poor record-keeping and communication. What Alaska has already started—but Scott, you mentioned in your piece how expensive it is to jail somebody. And the cost of jailing somebody is overwhelming. And these people are in jail for often for months because they couldn’t make bail. And on a pure cost-benefit analysis, the cost of allowing them to be free with the modest risk they don’t show up if you run the system right, if you basically run the court system the way my dental hygienist runs her office, which is she calls me and reminds me in the most annoying way I have to have my teeth cleaned in a couple of days—that’s all we are asking is that they do that, a pretty modest approach. And so the cost-benefit is overwhelming in favor of reforms. And that’s to me the takeaway.
Now, Scott, I want to thank you on behalf of all my audience and myself. Your piece was wonderful, and it really brings to our attention both an interesting issue because libertarians and progressives can come together on this. We hope there’s going to be benefit on the federal and state level. It looks very optimistic. How can our friends out there follow your writing and the work of Reason?
Scott Shackford: Sure. Yeah, you can find me easily on Reason. I blog on a daily basis during the week, so just look for my byline for my name, Scott Shackford. You can follow me on Twitter at S as in Scott and Shackford as my last name, so @SShackford. And I don’t tweet a whole lot, but I do tweet out everything that I write. So whenever anything pops up, it’ll show up on your Twitter feed if you’re following me.
Bob Zadek: And what are you working on now, Scott? We have about 30 seconds.
Scott Shackford: Mostly I’m following what’s going on with the bail reform movement. Bernie Sanders just introduced some legislation last week to try to eliminate cash bail on the federal and state level in the next three years. I don’t think that legislation is going to go much of anywhere, but I’m keeping track of where all of this activity is taking place and where it’s moving on to, and keeping an eye on California might be the next place where something big happens.
Bob Zadek: Thank you so much, Scott, for giving us your time this Sunday morning. Regards to all my friends at Reason, and so long to all my listeners and good friends out there. I’ll be back again next Sunday.