California’s bail system sucks.
Until of two weeks ago I was a clerk at a California public defender office. I would occasionally walk down to the felony arraignment courtroom and watch, amazed, as $20,000, $50,000, $100,000+ bail get set on almost uniformly poor clients. Almost no one could afford their bail, even with the help of their families, and most were headed to jail after seeing the judge. According to a 2015 report from the Public Policy Institute of California, the median bail in the state is $50,000, five times the national average, and about twice as many defendants are detained pre-trial than in the rest of the country (59% detained in California vs. 32% for the rest of the U.S.).
The California legislature passed SB 10 this week, which abolishes cash bail in favor of a “risk assessment tool,” which will determine under which conditions, if any, a defendant should be released pending trial. California governor Jerry Brown released a statement after signing the bill, saying “[t]oday, California reforms its bail system so that rich and poor alike are treated fairly.”
Hahahaha. Ha. This is of course wrong. It’s possible that more people will get let out of jail pre-trial than before, and certainly the bail bonds industry won’t be able to continue to prey on poor Californians. But this law is not objectively good. California is just switching out one racist way of locking up poor people for another.
There were so many last-minute changes to the bill that the ACLU, the bill’s original co-sponsor, reversed course and came out against it. The law as signed gives prosecutors and judges significant discretion over determining whether someone requires “preventative detention” pending trial (which in practice means months of being locked up before being convicted of anything), and imposes a “risk assessment tool” for determining what conditions, if any, will allow a person to walk free pending trial.
The good news is that, for people who get a low risk assessment score, they nor their families will have to pay the bail bond industry an absurd non-refundable fee to bail them out. And the small amount of data out there about The bad news is the outputs of algorithms like risk assessment tools are only as good as the data that it fed into them. If the inputs are the product of a racist system, so the outputs are likely to be just as racist.
Take incarceration rates: A “risk assessment algorithm” is probably going to take a defendant’s prior record into account. Black Americans are incarcerated at five times the rate of white Americans. One-third of black men have felony convictions on their record. I can already tell you that any sort of risk assessment algorithm that takes into account prior convictions without adjusting for overpoliced black neighborhoods, racist police, and majority-white juries is going to be harsher on black men than on white men. This is just one of the many data points an algorithm like this could use.
However, we likely won’t know exactly what inputs the algorithm uses, as it seems the “validated risk assessment tool” is only required by the law to be vaguely “scientific,” and is not required to be open to public audit. If it’s anything like the bail-related algorithms already out there, the creation of this new California algorithm will be farmed out to a private company, which will consider the exact calculations it makes proprietary. (Technology has opened up a whole new world where judges can lock people up pre-trial without explaining the reasoning, all for the benefit of some private corporation’s intellectual property.)
Then, there’s the significant override power than prosecutors and judges can wield as a result of this law. I look back at the statistic quoted above: almost twice as many defendants in California are kept in pre-trial detention as is the average for the rest of the country, and the median bail in the state is five times the national average. How much of that do judges and prosecutors argue is necessary for public safety? Are defendants in California twice as dangerous as defendants in other states (or five times richer?).
For all the talk in courts about the “public safety” — often the phrase used to justify keeping a person in jail or asking for tens of thousands of dollars in bail pending trial — few people in the criminal courts talk about the safety of defendants, who are, of course, also members of the public. Jails are violent places. They are resource-scarce and built on top-down state-sponsored violence. Just a few days inside can be the difference between life and death. The vast majority of jail deaths by suicide occur in the first week of being incarcerated; a quarter occur in first three days. Three days happens to be the length of time that a defendant can be held under this new California law while waiting for the court to hold a hearing on any “preventative detention” motion brought by a prosecutor.
When people talk about bail, I always think of Kalief Browder, the Bronx teenager who spent three years on Rikers Island for allegedly stealing a backpack because his family could not afford to pay to get him out. This is how he described one of his first jail experiences to the New Yorker:
“Browder told me that, one night soon after he arrived, a group of guards lined him and several other inmates up against a wall, trying to figure out who had been responsible for an earlier fight. “They’re talking to us about why did we jump these guys,” he said. “And as they’re talking they’re punching us one by one.” Browder said that he had nothing to do with the fight, but still the officers beat him; the other inmates endured much worse. “Their noses were leaking, their faces were bloody, their eyes were swollen,” he said. Afterward, the officers gave the teens a choice: go to the medical clinic or go back to bed. But they made it clear that, if the inmates went to the clinic and told the medical staff what had happened, they would write up charges against them, and get them sent to solitary confinement.”
What if the real threat to public safety is throwing people in jail that have yet to be convicted of anything?
Shane Ferro is a law student and a former professional blogger. She is (obviously) a bleeding-heart public interest kid.
California Botched Its Attempt to Abolish Cash Bail curated from Above the Law
No comments:
Post a Comment