The right to a pretrial bail is so old that it predates the Magna Carta. It is a right that is also protected in the United States Constitution under the Due Process clause (United States v. Salerno, 1987). This upcoming November, the state of California is voting on Proposition 25 in the hopes of doing away with cash bail. Back in 2018, the California legislature passed legislation on replacing cash bail with an algorithm-based risk assessment to determine whether the suspect is a flight risk enough to be incarcerated pretrial. This assessment would result in certain monitoring conditions throughout the trial. Unsurprisingly, the bail industry filed a veto referendum to dispute SB 10. If Proposition 25 passes, then cash bail will be a thing in the past. Here's what I am wondering: if pretrial bail has been such an enshrined right historically, why take issue with it?
The purpose of cash bail is to provide an incentive for those who are released pretrial to appear for their court dates. For those in favor of Proposition 25, there is the criticism that the cash bail system does not judge an individual based on an actual flight risk. Those who fare better in the cash bail system are those who are wealthier. Most who are wealthy can afford bail with little to no impediment. As for those who are poorer, they are forced to pay a disproportionately large amount of cash to work and be with their family as they await trail, regardless of whether they are minimal flight risk. On top of that, it entails giving the bail companies a nonrefundable premium worth 10 percent of the bail (e.g., a $50,000 bail means losing out on $5,000). For those who cannot afford to pay, they stay in jail. Not only are they deprived of working in while awaiting trial, but those who are stuck in jail are often forced to accept harsher plea deals than those who can fight the charges unincarcerated (Donnelly, 2018).
This brings us to the cost of the California bail system. As of 2014, 62 percent of prison beds (or about 50,000 beds) in California were filled with those awaiting trial, according to the Public Policy Institute of California [PPIC]. A Human Rights Watch report uses an estimate that the daily cost per prisoner is $113.87. Assuming that cost is accurate, that would mean the daily cost of imprisoning unsentenced individuals is about $5.7 million daily (or $2.09 billion annually). If we use the daily cost nationwide of $77.67 found in a December 2018 report from the centrist Brookings Institution, that would still mean an annual cost of $1.4 billion. These calculations would assume, of course, that all the unsentenced individuals would not be incarcerated. The high-bound assumption could be why the California Legislative Analyst Office [LAO] estimated that the reduction in local jail costs would be in the high tens of millions, instead of a higher amount.
This leads to the trade-off of replacing it with a risk assessment system. The aforementioned LAO fiscal impact report estimated that a new system under Prop 25 would cost in the mid-hundreds of millions of dollars, implying that the net cost could be higher under Prop 25. The fact that the LAO does not put a dollar amount on it makes it more difficult to determine net cost. The PPIC had a similar issue of putting a price tag on Prop 25 this past August.
Many Left-leaning individuals have been for Prop 25. However, there are some on the Left (and not just the American Bail Association) that believe that Prop 25 will make matters worse. The Essie Justice Group believes that it will have an even larger, disproportionate effect on minority communities. This seems to have been the case when the state of Kentucky removed its cash bail system (Albright, 2019). New Jersey had mixed results. On the one hand, pretrial imprisonments dropped by 27 percent since it removed cash bail in 2017. On the other hand, racial disparities did not budge. The ACLU of New York released a policy brief this year on how risk assessment tools perpetuate socio-economic and racial disparities. A group of researchers, including those from Harvard and MIT, signed a letter in 2019 saying that these tools do not reduce racial disparities.
The fact that the cash bail system de facto punishes many by throwing hundreds in jail before being tried, many of whom are low-risk, non-violent offenders, makes the idea of "innocent until proven guilty" a cruel joke or something that only applies to those who can afford it. Bail reform is needed. At the same time, one could argue that risk assessment tools perpetuate past biases of the criminal justice system. While there are issues with both the current cash bail system and risk assessment tools, I think I have a slight preference for Prop 25. I like how the Brennan Center for Justice concludes: If California votes "no," they should go back to the drawing board, get rid of cash bail, and avoid risk assessment tools. If California votes "yes," we should monitor the implementation of risk assessment tools to make sure disparities are not being perpetuated in the criminal justice system.
No comments:
Post a Comment