On Tuesday, Oct. 24, a workgroup established by California’s Chief Justice Tani G. Cantil-Sakauye to study the state’s bail system, issued a slate of recommendations. It stated that cash bail should be replaced by a pretrial release program based on risk assessment that determines the probability that a criminal defendant is likely to show up for their court appearance and that they pose minimal risk to public safety. Click here to view the recommendations.
This is not a California-only issue. The recommendations add another controversial element to the topic of bail reform, a battle which is currently being waged in states across the country through ongoing lawsuits, bills pending legislation and judicial intervention. The arguments put forth by Cantil-Sakauye are the same ones used everywhere and are a part of a coordinated national effort to alter the criminal justice system.
Advocates for bail reform have cited the fundamental unfairness of keeping people in jail simply because they are poor. Unfortunately, opponents point out, often lost in the discussion is the fact that the individuals in question have been accused of a crime. Charges are leveled only after law enforcement and a judge determines there is probable cause. They also point out that the cost of bail is directly scaled to the level of the offense.
Public safety is one of the key factors mentioned by those concerned about a radical overhaul of the existing cash bail system. In jurisdictions where bail reform has recently been instituted, there has been evidence of an increase in violent crime. For instance, in New Jersey, where cash bail was abolished earlier this year, a young man was shot 22 times by a career criminal who had been released just three days after being arrested on a weapons charge. And in Texas, a man arrested for looting a liquor store was released on his own recognizance despite having been arrested 10 times this year for a variety of offenses, including burglary, trespassing, theft and possession. On the earlier charges, he failed to appear in court numerous times.
Opponents also mention the use of risk assessment, which they feel is one of the primary flaws of bail reform. Using an algorithm, it determines who is “dangerous” and stays in jail, versus who is “safe” and allowed to go free while they await trial. The problem, they say, is that it is an either/or system with no human judgement involved. In a horrific case in Albuquerque last year, Michelle Martens participated in the methodical drugging, rape and murder of her 10-year-old daughter, Victoria, by her boyfriend and his cousin. Although Martens was arrested and held with no bail (her trial is still pending at this time), New Mexico subsequently instituted bail reform. Under the new laws, Martens would have been eligible for immediate release, as the risk assessment tool, based only on an algorithm, would have determined she was low-risk and therefore, not a risk to public safety. New Mexico Governor Susana Martinez, an opponent of bail reform has expressed outrage and is working to overturn laws in her state.
Another significant component to bail reform is the cost to taxpayers. Proponents often mention that freeing criminal defendants saves money through a reduced need for jails and associated administrative costs. But those opposed say that the amount spent in administering what is basically a free government-operated bail system — minus the revenue from bail fees – more than offsets any cost savings. These costs include creating an expensive infrastructure to monitor and track individuals who have been released.
This op-ed was provided to The Hamilton County Reporter by Media Vista Public Relations.