The Bail System Is Racist and Unjust. It Needs to Be Reformed.
In theory, money bail is a useful policy. It requires accused criminals to pay a deposit to secure their release from jail and incentivizes their court attendance on the day of trial (at which point the money is refunded). But in practice, it falls well short of this ideal.
Our criminal-justice system allows for a great deal of discretion, with leeway granted to police officers and detectives all the way up to prosecutors and judges. While some of this discretion was built into the system with good reason, it can also open the door to pervasive racism and other forms of discrimination.
Disparities are bad enough already
Black Americans are jailed on drug charges 10 times more often than whites, despite similar drug usage rates; racial minorities are jailed for all crimes at rates higher than whites; and even in juvenile detention centers, racial minorities are disproportionately represented. In addition, numerous studies have found racial and socioeconomic biases at play in how police officers stop and arrest individuals.
Discrimination also happens at later stages in the justice process: On average, black citizens serve almost as much time in federal prison for a drug offense as whites serve for a violent offense; and for violent offenses, black Americans are more likely to serve a greater portion of the maximum sentence than are whites.
Furthermore, the justice system is already incredibly biased towards — and arguably, designed against — the poor. The “criminalization of poverty,” as former Attorney General Loretta Lynch calls it, is a rampant problem in the United States. Americans in lower socioeconomic classes (particularly the homeless) face increased risk of search, arrest, and harassment by law enforcement, in addition to difficulties finding available and invested defense counsel.
Money bail makes it worse
The money bail system only exacerbates the existing, egregious disparities in our justice system. American courts set significantly higher bail amounts for black individuals than they do for white individuals, which is only compounded by the likelihood that people of color are more likely to serve pretrial time for accused crimes.
On top of this fact, courts across the country are using digital risk assessment algorithms (RAAs) to recommend bail amounts for accused criminals. But these systems — despite relying on the ones and zeros of a machine — are frequently prejudiced, falsely flagging black individuals as high-risk, for instance, at twice the rate of whites.
A common reaction to these facts is that the machines should eliminate human bias. Don’t they rely on precise mathematical formulas to determine risk in the least prejudiced way possible?
The answer is no; they absolutely do not. These algorithms are typically just as biased as the people programming them. As recently articulated in the Harvard Law Review, “risk assessments depend upon criminal justice data that is neither neutral nor objective.” When computers look at data about which populations are arrested and re-offending at higher rates, centuries of racism — from slavery to the modern Jim Crow — are embedded in the data alongside classism and other prejudices. But computers aren’t designed to read the historical data critically; disparate representations are simply taken as fact. The result is biased outputs like racist recidivism predictions.
In short, money bail disproportionately affects racial minorities and the poor. This policy unnecessarily keeps American citizens in jail just because they can’t afford to pay the relatively small fines imposed by criminal courts. Human bias is only amplified by heavy dependence on biased algorithms.
Reform, reform, reform
Though a 2017 ACLU poll revealed that nine out of 10 Americans support some level of reform to the criminal-justice system, few people argue for the elimination of cash bail. It seems to be a thoroughly entrenched institution within the criminal-justice system. However, cities and states across the country have recently begun experimenting with alternative methods of prosecution with remarkable success.
New Jersey and D.C. became the first jurisdictions in the United States to eliminate money bail in 2014. This bail reform legislation has already limited pretrial detention, saved money, and ensured court attendance — all undeniable benefits. New Jersey has seen a 20 percent drop in the number of defendants held in detention while awaiting trial. And D.C. is saving over $338 million annually in prison operation costs since terminating money bail. Pretrial reform is thus not only ethically imperative, but fiscally responsible. These reforms are shaping a pretrial justice revolution that is taking root throughout the country.
In undergoing bail reform, New Jersey and D.C. imposed a combination of alternative measures and reforms to the pretrial prosecutorial process. These include check-ins with officers, rehabilitative sentencing, and using unsecured bonds as replacements for the broken money bail system. Check-ins require that the accused meet regularly with a community agent in anticipation of their trial; rehabilitative sentences task suspects with histories of substance abuse with visiting doctors and addiction-relief services that may keep them away from minor crime; and unsecured bonds eliminate court payments — unless defendants fail to attend their trial date, at which point they are fined their full bail amount.
Each of these programs are tools available to the judge at arraignment and are meant to guarantee that the accused attends trial without placing undue financial burden on nonviolent offenders. Again, the policies are ethical and common sense. It goes without saying that they should be enacted in other states with the goal of greater fairness.
As we continue to address inherent inequalities, racism, and classism in the American criminal-justice system, reforming bail is a simple next step. Nearly 70 percent of those held in pretrial detention are accused of nonviolent crimes, which leaves little justification for the violations of freedom enforced against those who can’t afford bail. As the policies of New Jersey and D.C. have shown, reform in prosecutorial processes has the potential to make a bail-less society a reality. Policymakers, technologists, and the public at large must also push for increased accountability for the prejudiced algorithms that amplify the disparate impact of the criminal-justice system. “Innocent until proven guilty” will never ring true as long as socio-economic status determines culpability.