The buzz about bail reforms might seem to be a new movement, but if you look back, you can easily find that this is not the case.
50 years ago, Attorney General Robert Kennedy convened the first National Conference on Bail and Criminal Justice. In 1966, two years after that first conference, the Bail Reform Act expanded the practice of releasing defendants on their own recognizance.
Cherise Fanno Burdeen, CEO of the Pretrial Justice Initiative, says we are now in the third “generation” of bail reform. She places the start of this era in 2011, when Attorney General Eric Holder spoke to the National Symposium on Pretrial Justice. He expressed his support for jurisdictions that are seeking alternative to bail.
Burdeen said what is new about this moment is the pressure that activists are putting on their legislators and the criminal justice establishment to make a change, and make it now. She says, “This wave of reform is really an uptick in activity among the general public and the advocacy community.”
What Can We Expect to See?
While we know where we came from in this fight, where we are going is a little harder to see. Take, for example, Philadelphia.
The city has the highest incarceration rate of any large metropolis nationwide, and recently received $3.5 million to support bail reforms in their system. A portion of that money is being used to develop a “predictive risk algorithm” that can help judges decide who should be detained pretrial and who poses no real threat to the community – AKA, who can safely be released. These types of algorithms have been key in the bail reforms in New Jersey, Kentucky, Arizona, and dozens of counties across the country. The way they work is by combing through administrative records to determine a defendant’s likelihood for rearrest or failure to appear in court. Some of the factors these formulas consider include:
- Age of first arrest
- Prior misdemeanor or felony convictions
- History of drug abuse
- Previous incarceration
While this may seem pretty straightforward and even foolproof, the focus on these very detailed aspects of a person’s history can still lead to the same problems we currently have. That is, a disproportionate number of low-income Black people will go behind bars once again.
The reason this algorithm will not work is because, until the system has been in place for at least one generation, the records it will be pulling from will be inundated with the information that has us seeking reforms now.
In other words, because so many Black people are already being incarcerated, at such high rates every year, the algorithm is already biased, by virtue of the system it is trying to replace.
Is a Working Bail Reform Possible?
So, is it possible to develop some kind of bail reform that will actually work, after we have so badly damaged the entire justice system to begin with? Is it possible to make a working, unbiased system without essentially going back to the drawing board and scrapping everything up until this point? What do you think?