Public should know how bail decisions made
By Jeff Clayton, American Bail Coalition
New Jersey’s long-awaited bail reform laws finally kicked in on January 1, making it the first state to move to what is called a risk-based system. It works by utilizing government-operated computers running analytical software to supposedly predict whether a criminal defendant is likely to offend again or become a fugitive from justice. Supposedly is the key word, because so far, there are serious questions as to the accuracy of the results. More significantly, the very criteria used to make these determinations has been kept from the public by state officials.
The new system was created to eliminate posting bail either by cash or using a bail bondsmen by letting the new costly computers decide who stays in jail and who gets out for free.
Unfortunately, as bail reform began, we have already seen defendants engaging in dangerous, high-risk behavior. In one case, a man deemed by the computer to be low-risk was caught soliciting a 12-year-old girl for sex.
How can that be? That is because risk assessments only consider previous charges and convicted conduct. Strikingly, current charges are not factored in at all because it is considered unfair according to the algorithms. Ironically, bail in the U.S. has traditionally been based primarily on current charges, which seems fair and logical.
The public was sold on the premise that the new computers would do a better job than the judges they replaced — a reasonable expectation given millions of dollars of public money spent on it. These tax dollars could have been used for alternatives to bail reform, such as drug or mental health treatment programs for defendants truly needing help.
Yet, the public, police, prosecutors, victims and judges all assume these computers actually work. This is supported by the premise that individuals who don’t belong in jail under the Eighth Amendment are being held, while others who are dangerous are being released.
Practically speaking, can someone be considered low-risk when they’ve been caught dealing 37 bricks of heroin, soliciting sex from kids or burglarizing the Sunday school till at the local church? In point of fact, it is happening right now in New Jersey.
Many are asking questions about bail reform, but the real question is what does the state of New Jersey have to hide on these risk assessments? Disclose the computer program immediately and all data supporting it. Allow law enforcement officials and prosecutors to see behind the curtain, along with public defenders and defense lawyers. This will allow all parties to determine whether these risk assessments are truly predictive, while remaining race and gender-bias free.
It is time for the public to ask and the state to answer: Do New Jersey’s new government bail computers actually work?
Jeff Clayton is the Executive Director/Policy Director for the American Bail Coalition, a non-profit organization dedicated to the long term growth and sustainability of the surety bail industry.