Roughly 450,000 people are locked up in the United States, because they cannot afford to post bail. In the last 40 years, the United States prison population has increased by 500%, with 2.2 million people sitting in our prisons and jails. The primary contributor to this massive number is the jail population. This alone suggests that the bail system is desperately in need of reform.
New Jersey’s recent reforms, however, can perhaps serve as a model for how other states can improve their cash bail system. Before the system was overhauled, individuals waited on average 314 days from indictment to trial, often causing them to lose their job, housing, the ability to contact family and loved ones. From that population, more than two-thirds were Black and Brown people. It produced a two-tier justice system between the rich and the poor, disproportionately impacting white and non-white individuals.
The New Jersey Constitution mandates that judges set bail for all defendants regardless of their alleged crimes. In 1964, New Jersey Supreme Court argued that, “inevitably bail discriminates against the poor,” in the State v Johnson court case. Fifty years later, the Drug Policy Alliance researched the bail system and concluded that the New Jersey criminal justice system still targeted the poor. Following the report, the state’s Chief Justice created a committee to recommend improvements to the bail system. In 2017, the state implemented the Criminal Justice Reform Act overhauling much of the bail system. Under the new legislation, prosecutors must prove that defendants are flight risks or a danger to the community. As such, whether a defendant poses a threat to society or not, now determines whether they stay in prison, not the defendant’s wealth.
The legislation also provides an array of methods for managing the pretrial system. Now, courts must use the least restrictive condition, or a combination of them, such as adherence to a curfew, avoiding alcohol or unlawful drugs, or wearing an ankle monitor, before setting bail. In cases where defendants cannot meet these restrictions; judges can set bail or detain the accused pretrial.
The New Jersey Criminal Justice Reform Act has been successful since its inception in 2017. In 2012, twelve percent of the jail population could not afford bail under 2500 dollars, by 2018, this was down to only five percent. The report found that New Jersey’s PSA was accurate in the classification of a defendant’s risk. It has also been effective in reducing the disparity between higher and lower-income defendants. Today in New Jersey, socioeconomic status is not a significant determining of whether one spends days, weeks, or months in jail.
As a result of this reform, the state experienced a notable drop in the pretrial jail population without an increase in crime following the end of bail, dispelling a common argument against reforming the cash bail system, which speculates that ending bail will cause dramatic spikes in crime. Furthermore, a larger percentage of low-risk individuals receive complaint-summonses (an order to appear in court) instead of complaint-warrants (a legal document for the arrest of the individual and searching the premises).
Several states, such as California, will vote this November on ending the cash bail system. In 2018, California Governor Jerry Brown approved Senate Bill 10 which mostly eliminated cash bail and replaced it with Risk Assessments. However, using risk assessment scores under Proposition 25 for pretrial release will likely create an unjust system due to racial bias built into its formulas. Risk assessment scores often use computer programs which have biases against Black people. A ProPublica analysis of Florida’s risk score formula, for example, showed that the formula was twice as likely to falsely flag Black defendants as future criminals than White defendants, and more likely to mislabel White defendants as a lower risk.
The need for broad criminal justice reform has become even more critical in the wake of the Black Lives Matter protests carried out during the summer, after the deaths of George Floyd, Breonna Taylor, and others. Encouragingly, local leaders in California have already shown a willingness to make important changes. San Leandro cut its police department by 1.7 million dollars, and the city council plans to work with the community to reallocate the money. The Oakland Board of Education eliminated its school police department, and invested funded 2.5 million dollars toward student-support positions, such as counselors, psychologists, social workers, and other mental health professionals. Similarly, the San Francisco School Board removed police from publics schools and banned armed guards on school grounds. The money saved by this will be redistributed toward services supporting students. Because of the strength of its police union, Santa Ana could not implement as significant changes as these other cities, but it was still able to decrease the annual increase in the police budget from nine million to three million dollars.
Of course, it is important to note that ending cash bail is not a solution to all of the criminal justice system’s ills. Holding judges accountable for the discriminatory bails they set is also essential. In the five largest U.S. counties, Black defendants were, on average, assessed bails higher by $7,000 for violent crimes, $13,000 for drug crimes, and $10,000 for violations related to public order, compared to White defendants. Furthermore, on average, bail is set twice as high for Black defendants. Without accountability, we will continue to overuse our pretrial detention, even after removing cash bail.
Eliminating bail is an important first step in reforming the criminal justice system, but it does not address the inadequate funding for public defenders, the overuse of plea bargains, and parole’s ineffectiveness. Though Proposition 25 would correct some aspects of the criminal justice system, its proposal to implement risk assessment scores as an alternative, suggests that the changes will be more superficial than truly transformative. As such, California voters should reject Proposition 25 and advocate for more substantial changes, similar to those New Jersey implemented.