Time to bail on cash bail? A growing number of states are scrutinizing current systems, and exploring alternatives such as use of risk-assessment tools

Bail, in its most ideal form, serves two purposes. First, it maintains the American ideal of innocent until proven guilty by allowing suspects to continue their daily lives as normally as possible while they await further court actions. Second, it incentivizes the accused to attend future hearings or face financial consequences.
But in recent years, the downsides of the nation’s cash-bail system have state legislators, judges and other policymakers taking a closer look at their laws, as well as considering possible alternatives. Outside the Midwest, California and New Jersey have adopted some of the nation’s most significant changes. In this region, meanwhile, state or local reforms have either been proposed or implemented in every state.
States have used a variety of methods for exploring, and sometimes changing, their systems: for example, bills signed into law in Illinois, Indiana and Nebraska; the use of a legislative study committee in Wisconsin; and initiatives led by the state supreme courts of Kansas and Ohio.
However states get there, two interconnected policy changes are typically part of these legislative- or judicial-led initiatives: first, eliminate or curtail the use of cash bail in misdemeanor or low-level felony cases; second, replace cash bail with a risk-assessment tool to guide judges’ decisions on whether to release or detain a suspect.

Factors behind the reform push

Why would states consider sweeping changes to a cash bail system that has been in place for so long? Illinois Sen. Elgie Sims Jr. says he was motivated in part by the chance to reduce the number of people accused of nonviolent crimes being held in jails. The Bail Reform Act (SB 2034 of 2017) has allowed for that reduction to occur in Illinois, he says, while giving important decision-making powers back to the judiciary.
“It gives judges the opportunity to use their discretion and their better judgment,” Sims says of SB 2034, a bill he sponsored as a member of the Illinois House.
In Wisconsin, Sen. Van Wanggaard helped lead a recent legislative study of his home state’s bail system. One of his end goals: Ensure that public safety plays a larger role in bail decisions. “Say, for instance, an individual has threatened to hurt citizens or victims once they get out,” he says. “It’s not so much about them thinking about fleeing, whether or not they’re a flight risk, but it should be the public safety issue.”
Under the current system, he adds, “judges don’t really have to consider [public safety] as a primary reason when you start talking about bail.”
Nancy Fishman, project director of the Vera Institute of Justice’s Center on Sentencing and Corrections, identifies four drawbacks with the cash-bail system currently in place in most states. The first is how it affects the accused differently.
“[If] the only thing that distinguishes the people who are innocent on the inside and the people who are innocent on the outside is money — the ability to pay — then you have a system that is built in inequities,” says Fishman, adding that this imbalance adversely impacts women and people of color.
Second, as the price of cash bail has steadily risen, the system has become a way of keeping people in jail instead of a way of allowing people to be released. Third, Fishman says, cash bail is not the best way of determining who needs to stay in jail. For example, if a violent offender facing many years in prison has the financial means to pay for an expensive bail, he or she also probably has the means and incentive to skip town. Conversely, nonviolent offenders facing light sentences (community service, for example) would have little incentive to skip their future hearings if released from custody. But they may not be able to afford bail.
A fourth drawback, Fishman says, is that people who are unable to pay bail and spend any time in pretrial incarceration face long-term, negative consequences: “They’re more likely to recidivate. There’s long-term impact on their ability to work and take care of their families.”
And these effects are not limited to a small number of people.
According to the Prison Policy Initiative, more than 500,000 people in the United States were detained in jails before their trial in 2018. Over the last 20 years, all net growth in the number of people held in local jails can be attributed to the pretrial detention of unconvicted individuals.

Two major changes outside Midwest

New Jersey was one of the first states to shift away from cash bail with its passage in 2014 of SB 946.
This legislation eliminated cash bail for most crimes, instead establishing non-monetary bail alternatives for release. (Under a constitutional amendment passed by New Jersey voters that same year, judges also can deny bail completely to certain high-risk defendants.)
Under SB 946, when an individual is booked into a county jail after arrest, a recommendation on whether he or she should be released is based on a Public Safety Assessment: What is the likelihood that this person will commit another crime or not return to court? Several factors are used in this assessment — whether the person was charged with a violent crime, for example, or if he or she has a criminal history.
If prosecutors want the suspect kept in jail, a judge considers the safety assessment and the prosecution’s arguments when deciding whether to detain the person, release him or her, or release with conditions. Challenged in court by the commercial bail-bond industry as a violation of a defendant’s constitutional right to bail, the law was upheld last year by a federal appeals court. In the program’s first year, 2017, New Jersey’s pretrial jail population fell by 20 percent.
More recently, California lawmakers passed SB 10 in 2018. It calls for complete elimination of the monetary bail system and, like New Jersey, the use of pretrial assessments to determine a person’s likelihood to flee and/or re-offend.
Those arrested and/or detained for a misdemeanor would be booked and released without use of this risk assessment. Violent offenders and those defendants who fail the risk assessment could be denied pretrial release, while others could be released with conditions.
Implementation of California’s SB 10 has been delayed, however: Its opponents gathered enough signatures for voters to decide on its fate in a 2020 referendum.

Three new laws in Midwest

Since 2017, legislatures in at least three Midwestern states have passed bills related to cash bail and/or the use of risk-assessment tools to determine an arrestee’s likelihood of committing a new criminal offense or failing to appear in court. Here is a summary of each of these new laws.
Nebraska’s LB 259
Passed two years ago with overwhelming support in the Unicameral Legislature, LB 259’s goals include reducing overcrowding in local jails and preventing the pretrial detention of people who have been charged with low-level offenses and are too poor to post bonds. The bill’s sponsor, Sen. Matt Hansen, noted in a column last year for the Lincoln Journal Star that more than half of the jail population in Nebraska’s largest counties was made up of pretrial detainees unable to afford bail.
LB 259 gives jurisdictional authority to county courts to determine the competency of a defendant to stand trial and his or her ability to pay bail or fines. Judges also must consider a defendant’s finances when setting the price of bail, fines and fees. Furthermore, LB 259 increased the credits that individuals could earn per day toward their debts, from $90 to $150. If, for example, a person receives a $150 ticket for possession of an open container of alcohol and they are held in custody for failure to pay, one day in custody would be equivalent to paying the ticket.
Indiana’s HB 1137
With the passage two years ago of HB 1137, Indiana legislators tasked the state Supreme Court with developing a pretrial risk-assessment system by the end of this year. That system, combined with changes in bail policy, could help reduce the state’s jail population. Between 65 percent and 75 percent of that population is made up of people awaiting trial, according to a fiscal note on HB 1137 prepared by Indiana’s Legislative Services Agency.
Eleven Indiana counties, meanwhile, already have been piloting the use of a risk-assessment tool in the pretrial process.
Trained staff in these counties ask offenders a series of seven questions about their housing, drug use, employment and criminal history. Their answers and criminal records are used to classify them as a low, moderate or high risk of flight and/or re-offending. Judges then decide if a suspect should be released or held in jail — based on the criminal charge against him or her as well as the risk assessment.
Initial concerns about use of the risk-assessment tool were voiced both by public safety advocates who believed dangerous criminals would be set free and civil liberties groups that worried minorities would be disproportionately denied bail.
While it remains to be seen if Indiana’s risk-assessment tool has any kind of racial or ethnic bias, there is evidence that its use has not decreased public safety, The Indianapolis Star reported last year. Hamilton County placed 1,708 of 2,166 defendants on pretrial supervision in 2017. Of those released without having to pay bail, 91.2 percent made their scheduled hearings and 89.4 percent were not charged with new crimes during the pretrial stage. From October 2017 to August 2018, nearby Hendricks County released 70 defendants on the lowest level of supervision. Only two of those 70 failed to appear at their future hearings, and only one was arrested for a new offense.
Illinois’ SB 2034
The Illinois Bail Reform Act (SB 2034 of 2017) set in statute a presumption that the conditions of release for individuals arrested for nonviolent misdemeanors or low-level felonies “shall be non-monetary” and least restrictive as possible, while still assuring a defendant’s appearance at future proceedings. In addition, courts are expected to consider the defendant’s socioeconomic status when setting conditions of release or imposing monetary bail.
SB 2034 also authorizes the Illinois Supreme Court to establish a risk-assessment tool to help determine pretrial release decisions.
In April 2017, the state Supreme Court adopted a statewide policy statement encouraging circuit courts to establish pretrial services agencies that help judges make bail determinations. Furthermore, Illinois’ highest court formed a Pretrial Practices Commission to conduct a comprehensive review of the state’s pretrial detention system and to make recommendations for change by December.
Sen. Sims says he has taken away three lessons from his work on SB 2034, and some of the changes that have come since its passage. “First and foremost, be bold, understand that you have the ability to change the system,” he says about the role for state legislators. “Second, be comprehensive, focus on the system from the ground up … My last point, be inclusive, have different voices in the room.”

Potential for future legislative action

Between August 2018 and February of this year, a bipartisan, 14-member group of state legislators, judges, district attorneys and others studied Wisconsin’s policies on bail and pretrial release. “It gives us a little more direction [compared to the traditional legislative process] when we work through a study committee,” says Sen. Wanggaard, who served as chair of this Wisconsin Joint Legislative Council group.
“We were able, over that period of time, to have six separate meetings. We heard from different experts in the field and we were able to ask if this really answered all of our questions. And if not, who else do we need to bring in for our next meeting?”
The committee’s final report recommends that the Joint Legislative Council propose an amendment to the Wisconsin Constitution. This constitutional revision would, in turn, allow for policy changes related to the pretrial release or detention of arrestees. For example, all suspects would be “presumed” to be eligible for release, though judges would still weigh factors such as risk to the community and failure to appear in court.
Also under the constitutional amendment, any law authorizing circuit courts to deny release prior to conviction would have to:
  • specify the circumstances under which an accused may be denied pretrial release;
  • limit the amount of time a suspect may be denied release prior to conviction; and
  • require courts to conduct pretrial detention hearings.
The Wisconsin committee also has proposed three additional bills related to bail and pretrial risk assessments. These measures could only take effect, however, with passage of the constitutional amendment.
Various bail-related measures have been introduced in Michigan, Minnesota, Ohio and North Dakota in recent years. None has passed. The bills in Ohio (HB 439 of 2017) and North Dakota (HB 1258 of 2019) would have created pretrial risk-assessment programs, while a package of bills last year in Michigan (HB 6455-6463) would have completely overhauled the cash bail system.
Minnesota’s HB 741 and SF 87 were introduced earlier this year; they would limit the use of cash bail for certain offenses.


State supreme courts, local initiatives exploring use of risk assessments, other pretrial reforms

Changes to bail and pretrial incarceration policies typically involve cooperation among a state government’s three branches, and in some Midwestern states, the judiciary is leading the way. In Indiana, for example, the state Supreme Court initiated a pilot project to test the use of a Risk Assessment System-Pretrial Assessment Tool, which is designed to help local courts make evidence-based pretrial decisions. The goal: Reduce pretrial incarceration for defendants with lower risk levels, as determined by the risk assessment, and provide suitable levels of detention for high-risk defendants. Eleven Indiana counties have been piloting the use of this risk-assessment tool in the pretrial process.
In 2018, the Kansas Supreme Court formed the Ad Hoc Pretrial Justice Task Force to explore the state’s bail laws and possible alternatives. It will submit recommendations to the Kansas Legislature in mid-2020. In Ohio, Supreme Court Justice Maureen O’Connor has brought together a 24-member task force to study other states’ bail practices, the use of risk assessments to assist bail decisions, and legal challenges to the elimination of bail. The task force was expected to deliver recommendations sometime in April.
Local-level initiatives, meanwhile, are in place in states such as Iowa and South Dakota. In Iowa, despite opposition from some state lawmakers, four counties tested the use of a pretrial risk assessment tool in 2018. South Dakota’s Pennington County received a $1.75 million grant from the MacArthur Foundation’s Safety and Justice Challenge to reduce its jail population. One of the county’s four new strategies is to expand non-jail options for lower-risk offenders through the use of a risk-assessment tool.
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