California Fails the No Bail Test

You won’t find many people, including the bondsman, who would argue that the current bail system is perfect. The desire to improve the system, however, sometimes generates some pretty extreme proposals, including the idea of ending cash bail altogether. But because such notions are often vaguely defined and fail to provide practical alternatives to bail they usually fall flat on their face.

Except in California, where a lack of fair, cost-effective alternatives hasn’t stopped the administration of Governor Jerry Brown from abolishing cash bail completely. The new law, dubbed SB 10, comes into effect in late 2019 and uses the flaws in the current system to justify chaos, discrimination and the endangering of public safety.

Replacing Bail Bonds with Something Much Worse

SB 10 initially had a lot of high powered civil society organizations behind it, including the ACLU which co-sponsored the original bill. As it wound its way through the legislative process, however, the bill became so weighed down by amendments and changes that even the ACLU eventually reversed course and announced their opposition to it.

Brown signed SB 10 anyway declaring that it would produce a system that would be fair for rich and poor alike but neglecting to address concerns that, in fact, what it was likely to do was make a bad situation even worse.

Fostering Judicial Tyranny

The final bill signed by Brown replaces the cash bail system with a “risk assessment system” (code name for “bail algorithm”) that uses artificial intelligence to try and determine if someone is a flight risk. It also assigns broad new powers to judges and prosecutors to arbitrarily detain suspects the algorithm decides likely won’t show up for their scheduled court appearance. As a result the number of people being detained is likely to skyrocket.

Why? Because bail creates an incentive for a person to appear. If they don’t, they or their indemnitor lose the full bail amount. Once this incentive to appear is removed from the system the likelihood of defendants not appearing for their court dates increases sharply. As a result judges will likely wind up detaining a higher percentage of them fearing that if they don’t they’ll simply never see those defendants again after they are released.

Codifying Institutional Racism

Its supporters claim SB 10 will eliminate the phenomenon of allegedly racist judges imposing harsh bail demands on minorities. What they fail to recognize (or maybe consciously ignore) is that a bail algorithm is only as good as its programming and the data it bases its conclusions on.

If the justice system is and has been as slanted against minorities as many believe then the statistics the bail algorithm is going to be using are by nature, racist. Therefore the entire “risk assessment system” must itself be racist. Not by intention, but because it is using racist information to draw its conclusions.

For example: It is likely any bail algorithm is going to take the incarceration history of the defendant into consideration. Historically however, a case can be made that blacks are incarcerated at a much higher rate than whites, due at least in part to being more aggressively policed.

The bail algorithm doesn’t consider over-policing as a potential cause of more frequent incarceration though. All it sees is that this person spent more time in jail. As a result it may recommend continued incarceration.

A Lack of Accountability

Another equally serious potential flaw with the bail algorithm is the lack of accountability. If a judge makes an overtly racist bail decision that decision is in the public record and the judge can be held to account.

On the other hand no one but the programmers who wrote it knows exactly how a bail algorithm works. We all just have to trust that they got things right and didn’t program in their own prejudices.

Furthermore, because development of this type of program is typically farmed out to private companies there is virtually no public oversight involved in its creation. Again, we just have to trust that the company did it right.

Finally, the bail algorithm allows judges to lock people up without having to accept responsibility. They can say they were simply acting on the recommendation of the algorithm. An algorithm no one understands and which was developed in secret by a private company.

Danger to the Defendants

Whether we like to admit it or not defendants are innocent until proven guilty and jails are often violent, dangerous places. By foregoing the bail bonding process it is inevitable that a large number of innocent people who might have been able to make bail are going to be subjected instead to the horrors of the jail system simply because a computer program says so.

Either that or judges, hemmed in by the black and white nature of “release or detain”, are going to send people to jail while they await trial just because they don’t see the option of releasing them on their own recognizance as an appropriate thing to do.

Conclusion

The job of the bondsman is a thankless one that some people have been trying to do away with for years. But while the current system isn’t perfect the alternatives - especially the total elimination of bail - go so far in the opposite direction that they may completely upend the rights of the accused. We don’t have bail algorithms in Jefferson County, Arapahoe County or Denver County . Yet. But don’t be surprised if they find their way here in the near future.