There has been another step in this nation’s path toward elimination of money bail. This time it is from the Alaska legislature.
“It’s a fundamental sea change in the way judges will be making their decisions on bail,” said Nancy Meade, general counsel of the Alaska Court System to the assembled attorneys.
When someone is charged with a crime, they will no longer have to pay cash to get out of jail before their trial. Instead, the state will judge each accused criminal under a point-based system that considers how likely they are to show up to court appearances or commit a new crime. They’ll still be monitored, but they’ll be able to go to work, and the state won’t have to pay for their jail time.
If lawmakers are serious about mass incarceration, this is a prime location is start:
Three out of five people in jail are there simply because they can’t afford to pay bail. “If you want to tackle mass incarceration, you have to go to where mass incarceration is happening,” says Cherise Fanno Burdeen, CEO of the Pretrial Justice Initiative. “This is where the most disruptive action of the state happens in people’s lives.”
UPDATE: “With the new reforms in place, PEW estimates that the number of inmates will decrease by 13 percent and that the state will save $380 million. The state plans to reinvest $98 million of that total over six years in crime victim services, pretrial services and supervision, re-entry support, substance abuse and mental health treatment in both prison and communities, and violence prevention.”
Alaska is just the most recent example of lawmakers modifying their systems away from the unsustainable status quo. As summarized in this article from Colorlines,
Even at the federal level, public officials are following advocates’ and activists’ lead. In July, Sens. Kamala Harris (D-Calif.) and Rand Paul (R-Ky.) introduced federal legislation that would give states U.S. Department of Justice grants to “reform or replace the bail system.” In announcing their bill, the progressive Californian and the libertarian Kentuckian pointed to states where reform is already underway. New Jersey’s legislature passed reform in 2014 and the new system went into effect in January. The state’s jail population is down 20 percent since the start of the year and down 35 percent compared to June 2015, according to a new report [PDF] from the Administrative Office of the Court. New Jersey’s reform, like other jurisdictions’, depends on judges’ use of a risk assessment tool to decide who gets out of jail pretrial.
I am afraid that Alabama will not see money bail reform from the legislative branch, though. I expect it will be forced to modify its practices through the judicial branch: through federal and state litigation. I have previously written about such efforts: here, here. Colorlines details how this works; its definitely more expensive option:
Thomas Harvey, who directs the non-profit law firm ArchCity Defenders, is challenging the interrelated system of bail and traffic fines and fees that put people behind bars—what he calls the criminalization of poverty and race—through a series of lawsuits in St. Louis County, Missouri. Just fewer than 1 million people live in the county’s 90 towns, 81 of which have their own police forces and part-time courts. Harvey and his colleagues have sued 30 of those towns, including Ferguson, using class action suits to challenge their use of bail and their operation of what Harvey calls debtors’ prisons. “At least in the St. Louis region, it’s poor folks and communities of color that are being held on cash bail,” Harvey says. “Courts are quicker to impose these onerous consequences on them.” (This is true nationwide as well. Black Americans are 2.5 times more likely to be arrested and almost four times more likely [PDF] to be jailed than White Americans.
Harvey’s group has reached settlements with the cities of Jennings, Velda City and St. Ann. Last year, Jennings agreed to pay $4.7 million in compensation to people detained for court debts and also signed on to a set of reforms including ending cash bail in favor of releasing those accused of nonviolent offenses on their own recognizance. Under the new system, the court employs a five-step process before issuing a warrant for someone’s arrest for failure to appear in court, Harvey says.
These wins and others like them in recent years have occurred in small municipalities throughout the Midwest and South, where there’s often a lack of training and professionalism on the part of court officials, says Harvey. Attorneys involved in these cases and specializing in bail reform litigation, such as those at Civil Rights Corps and Equal Justice Under Law, are now taking on big cities, including Houston and Chicago.
Alaska has adopted a bail “point-system” similar to what has been adopted in New Jersey and Kentucky.
Here’s how it works.
Each suspect gets two grades. One details how likely they are to show up in court. The second estimates how likely they are to commit another crime if they’re released.
The first grade, called the “Failure to Appear Scale” runs 0-8 points. Anything from 0-4 points is considered low risk. Anything 7-8 points is high risk. A suspect gets points based on how frequently they’ve failed to appear in court in the past few years, whether or not they’re booked on a property crime or motor vehicle crime, and how old they were when they were first arrested.
The second grade is called the “New Criminal Arrest Scale” and it runs 0-10 points. Any score 0-5 points is low risk, and a 10-point score is a high risk. Points are awarded for how many times the person has been arrested or convicted in the past few years, how many times they’ve been on probation, how many times they were jailed, and how old they were when they were first arrested.
This system is not perfect, but certainly is an improvement and has resulted in a major decrease in jail populations.
But why did Alaska switch?
Alaska’s existing system of pretrial release is based on money bail. If someone cannot afford the bail amount set by a judge, he or she stays in jail until trial. A study conducted in 2015 by the Pew Charitable Trust and the Alaska Judicial Council found that led to inequal outcomes. Defendants from poorer areas of the state were more likely to plead guilty to crimes and more likely to stay in jail until trial. There was also a racial disparity, possibly linked to the well-known racial economic gap in Alaska and the United States. White, Hispanic and Asian defendants were much more likely to be released before trial than black or Native defendants
Further studies concluded that keeping nonviolent offenders in jail before trial boosted prison costs and reduced the chance that a person — even if found innocent at trial — could return to normal life. In many cases, they had lost their jobs and homes, and returning to crime was the easiest path to subsistence.