There is no standard bail or pretrial process — each state and the federal government handle these decisions differently. In recent years, however, a growing number of states have made changes to their bail systems to try to make release safer for the public and fairer for individual defendants. New changes, such as those embraced by the courts in Arizona, Illinois, Maryland and New Mexico, are designed to minimize the impact of a person’s financial standing on decisions regarding their release.[21]
For example, Alaska now automatically affords people charged with most crimes release on personal recognizance.[22] Indiana is piloting a new program that uses a risk assessment questionnaire to help judges make more objective decisions about whom they may safely release, with an eye toward wider use of personal recognizance bonds for low-income defendants.[23] Illinois, meanwhile, passed legislation in 2017 allowing defendants who can’t afford their bail deposit to have a new hearing on the bail amount[24] The new law also specifically exempts people accused of certain low-level offenses from being required to pay bail. Even Michigan’s own 55th Judicial District Court is piloting a new policy that releases most misdemeanor defendants on personal recognizance, which, in its early stages, seems to slightly improve their trial appearance rate.[25]
New Jersey’s recent bail reform has become a particularly popular case study. In 2017, the state overhauled its pretrial detention practices so that the use of money bail has decreased dramatically: In 2017, New Jersey judges only required 44 people to post money bail, of more than 140,000 defendants who faced criminal charges that year.[26] Nearly 70 percent of all criminal defendants were charged and then granted pretrial release.[27]
New Jersey requires judges to use a risk assessment and an accompanying decision-making framework when making pretrial release determinations. The risk assessment tool attempts to quantify a defendant’s potential risk to society by assigning a numerical score to various factors, such as criminal history and age, which may be able to predict the probability of failure to appear, or the risk of re-offense while on pretrial release.[28] Judges may exercise discretion as to how this information will impact the pretrial release decision, but are encouraged to release defendants with the lowest scores on their own recognizance, impose release conditions on those with middling scores, and deny bail to defendants deemed a high risk by the assessment.[29]
Although risk assessment tools are a relatively new development and have been subject to criticism, research suggests that these algorithms could be useful.[30] New Jersey’s new system contributed to a 20 percent decrease in the state’s pretrial jail population in 2017.[31] Opponents of the change predicted that releasing criminal defendants would result in a statewide crime wave, but law enforcement statistics show no such increase in violent crime: Murders, robberies and assaults actually decreased statewide.[32] Although challenges with funding the program have materialized, New Jersey’s reformed pretrial system is the only one in the U.S. to receive an A grade from the Pretrial Justice Institute.[33]
On the other hand, Maryland seems to have experienced negative unintended consequences of the bail reforms it made in July 2017. The state now requires judges to set the “least onerous” restrictions needed to ensure a defendant appears at his trial. Early data from its new system indicate that, while the number of people detained because they couldn’t or wouldn’t pay bail was halved, the number of people held without bail more than doubled.[34] And defendants who were released on personal recognizance are more likely than before to be fitted with ankle monitors at a cost to themselves that frequently exceeds what cash bail would have cost. Some critics of the reforms argue that the changes have made low-income defendants worse off than they were before. Meanwhile the failure-to-appear rate was up five percentage points between October 2017 and January 2018.[35]
At least three explanations have been offered to explain the increased bail denials in Maryland. One is that the change prompted judges to be frank: Rather than set a steep bail amount in the hope that a risky defendant won’t be able to pay, judges are now more apt to simply eliminate the bail option for those defendants.[36] Another is that, since losing the middle option that bail offers between releasing defendants on personal recognizance and detaining them, judges now err on the side of caution and deny bail.[37] The third, which may help explain some of the other consequences, such as a higher percentage of defendants failing to appear in court, is that the reforms were implemented prematurely, without a companion pretrial services system that would have helped them work better.[38]
The success of bail reform in New Jersey has been due in large part to ensuring that judges have some middle ground between release and detention. When neither detention nor release on recognizance is an appropriate option, judges have been able to rely on a third option: pretrial services that supervise the defendant while he is released back into the community.[39] As part of these services, case managers connect defendants to treatment and help enforce compliance with other court-ordered treatment. They also help defendants meet employment requirements, housing restrictions and other conditions of release.
If these services are not available or not operating at capacity, judges can be unwilling to release defendants that they perceive as a risk. Criminal defendants are more likely than the general population to be plagued by addiction, mental illness, joblessness, homelessness and poverty. For this reason, judges can be more likely to err on the side of caution and order detention without bail if there are no services available in the community to help defendants address the issues underlying their criminality and hold them accountable for appearing at trial.
The case studies described in this paper speak to the complexity of the pretrial release system, demonstrating how carefully and comprehensively reforms must be implemented in order to succeed.