If you’d like to read a great analysis of the problems with bail reform, head on over to Jeff Clayton’s article on Law 360 for a take from the other side – the less vociferous one that is championing the Constitution. Clayton is an attorney and executive director of the American Bail Coalition. He has also held positions with the Colorado state government and the U.S. Department of Transportation.
Bail Reform in Maryland is an Epic Fail
Interestingly, Clayton takes aim at none other than Maryland, our own home state and base of operations, where bail reform has been instituted less aggressively than in California, but has some pretty nifty failure statistics nonetheless.
You see, in July 2017, Maryland’s Court of Appeals adopted what Clayton calls the “take it or leave it” approach to bail – either release defendants on a promise to appear for their court hearings, or lock them up as a means of preventative detention, the latter of which is anathema to bail reformers.
Jail Population in Baltimore Rises…a Lot
The result of all this good reform? An increase in the Baltimore City jail population of 23%, according to a report from WBAL-TV. Alas, Prince George’s County saw similar increases. How about rural Maryland? In Washington County the number of defendants detained without bail went from 24% to 74%. Best not to get arrested in Hagerstown, folks – cause you’re not getting out of jail there!
Needless to say, reformers are not happy with these numbers. They want further change. And they’re pushing for it.
Risk Assessment Algorithm? Just Kidding…
Numbers don’t lie, so an algorithm to determine risk – and thus the bail vs. no bail decision – has been seen as the savior for reformers for some time. Alas, the algo hasn’t been tweaked quite well enough yet, because it too has been abandoned by former supporters. In a statement issued jointly, the NAACP and ACLU noted:
Pretrial risk assessment instruments are not a panacea for racial bias or inequality. Nor are they race-neutral, because all predictive tools and algorithms operate within the framework of institutions, structures and a society infected by bias. Those facts weigh heavily against their use.
Well…darn. This is proving more problematic than we though, huh?
Notes Myaisha Hayes, the national organizer on criminal justice and technology at the Center for Media Justice:
Algorithms cannot undue the racial bias that exists in the criminal legal system. These and other high tech tools will always disadvantage communities of color and threaten to replace mass incarceration with digital prisons.
The False Dichotomy That is the “Rich/Poor” Argument
Clayton concludes with a plea of sorts. For a return to sanity.
We owe it to ourselves to embrace the best options possible for criminal justice solutions. The implosion and ultimate failure of risk-based bail reform offers us a great opportunity to fix this broken system. Failure to do so gives the government a green light to constrain our liberties and incarcerate en masse, while taking a sledgehammer to the precious American concept of presumption of innocence.