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States across the country have taken stabs at reforming how the money bail system operates. In West Virginia, the state legislature passed HB 2419, a law enacted in June 2020 that aimed to limit bail amounts, and by extension, shrink the exploding jail population.
HB 2419 calls for judges and magistrates to use discretion when assigning bail by using the least restrictive means necessary to ensure the accused person’s appearance in court. The law encourages judges to release certain nonviolent offenders on personal recognizance bonds, which is a formal agreement where the accused person is released from jail on the promise that they will return for trial.
The bill was passed at a time when jails and prisons across the country were releasing more people to prevent the spread of COVID-19, and West Virginia followed that trend.
Between March 2, 2020 and April 20, 2020, more than 1,000 people were released from jails. It was a 21% decrease, according to a report from the WV Center on Budget and Policy. Since then, the population has continued to rise. By mid-March of this year, there were more than 6,000 people in jails, which is 144% of the maximum capacity, and that’s more people than before they started reducing the population. At the end of July, the regional jails had 1,155 more people than space.
Not only are the jails still overcrowded, but lawyers and legislators can’t even agree on how to interpret the new law, or HB 2419. Not to mention that it fails to prescribe a concrete practice for judges or magistrates.
Despite its flaws, the law was passed at a time when the whole country was looking at mass incarceration and asking for change. Other states have attempted some form of bail reform to begin to address the issue. So, how are other states doing?
Let’s start with a neighbor to the west, Kentucky.
The bail bonds industry does not operate in Kentucky. So, money bail is still an option a judge can give, but there are no corporate bondsmen in the state to whom people can go to help with their bail.
“So the people who are incarcerated, pretrial, it’s not necessarily because of the specific crime. It is because they cannot pay,” said Ashely Spalding, research director at the Kentucky Center for Economic Policy.
In 2019, Spalding released a report called “Disparate Justice: Where Kentuckians Live Determines Whether They Stay in Jail Because They Can’t Afford Cash Bail.” There are 120 counties in Kentucky, and her report found some large discrepancies regarding bail. For instance, on the west side of the state, in McCracken County, only 5% of cases were granted release without monetary restrictions. So 95% were assessed a bail amount. But on the other side of the state, in Martin County, 68% of cases were released without money bail.
“It’s so disparate, geographically disparate these practices are,” she said. “You know, 40% of cases result in release without financial conditions, which is too low.”
Like West Virginia, Kentucky began releasing a lot of people from jail in the spring of 2020 due to the COVID-19 pandemic. Jails and prisons are hot spots for spreading the virus, so a lot of states released low-level offenders to reduce the risk of spread. But Kentucky used a program called Administrative Release.
It’s a non-judge automatic release for certain nonviolent, nonsexual crimes, according to Scott West, the deputy public advocate for the Kentucky Department of Public Advocacy.
So if someone commits a certain, nonviolent crime, they don’t even stand before a judge, they are automatically released and only need to return for their trial hearing.
Administrative release started in 2015 and expanded state-wide in 2017, and West says the program was also expanded to include certain nonviolent, nonsexual felonies as well as misdemeanors at the start of the pandemic.
“Whereas in 2018, 2019, that about 10%, or 9%, would get out by administrative release, when COVID hit, it went up to 39% for the first three months of COVID. So almost, you know, a fourfold increase in the number of people who are released on AR,” he said.
The Kentucky Court of Justice collected data after the increase in administrative release and turns out, and rearrests didn’t drastically change. In 2019, 92% of people released on AR were not rearrested. In 2020, though the number of people released on AR doubled, 89% were not rearrested.
A common argument against bail reform is that it reduces public safety, according to Spalding, but in this instance, the data collected from the increase in administrative release revealed the contrary.
“In this case, it was very important for safety all around for people to not be incarcerated, if at all possible, because of their vulnerability to getting COVID-19 and its spread in confined situations like jails. So this data, the expansion of this administrative release, provided us with an opportunity to look at data on what happened, and it really shows that the release of more people is in line with our public or community’s safety goals,” she said.
The next state on our tour of bail is another neighbor of West Virginia’s, Ohio. Anthony Body is a bail disruptor for the Bail Project in Cleveland, Ohio.
“A bail disrupter, we’re just here to disrupt the system,” he said.
Our interview was on Zoom, but he spoke from inside the Cuyahoga County Justice Center where he does most of his work until recently, when the pandemic forced him to split his time in half between the jail and his home office.
Body says there isn’t a typical day on the job, but he usually starts the day retrieving a list of potential clients from a public defender and then goes into the jail to meet with as many of those people as possible. He will interview clients, learn about their situation and if they’re eligible, the Bail Project will pay for that person’s bail at no cost to them.
“I can interview like 20-30 people on a daily basis,” he said, “just get to know them, be there from like, 8 a.m. to sometimes seven at night, and just getting people out of jail, listen to different stories, sometimes seeing yourself in some of the clients.”
After they’re released, Body provides wraparound services to his clients like court reminders, transportation assistance, referrals to social services and community resources.
“Whether it be housing, addiction problems, education, job, and so forth. We’re not direct service providers, but we try to steer them in a direction of different agencies that can assist them with their problems. It can decrease the likelihood of them reentering the criminal justice system,” he said.
Body says it’s fulfilling to help someone out of jail if they don’t have to be there. However, it can be taxing as a person of color to see so many other people who look like him incarcerated.
“We’re in a system where you’re deemed innocent until proven guilty, but for the most part, blacks and the poor, you’re guilty until proven innocent once you’re given that bail,” he said.
“So some days, it’s exciting because I get to just see that look on people’s faces. And other days, it can be depressing, because like, on a continuous basis, you see people that look just like you. It’s like, every day I’m coming to bail myself out of jail. It can become heartbreaking. It takes its toll on you mentally.”
Some counties in Ohio use a pretrial risk assessment tool when determining whether or not someone should be given bail. The tool is essentially an algorithm that predicts failure to appear in court. The Cleveland Municipal Court uses the Public Safety Assessment from the Laura and John Arnold Foundation. The PSA uses nine factors to generate scores that predict three outcomes.
The first, failure to appear pretrial, the second, new criminal arrests while on pretrial release and the third, new violent criminal arrest while on pretrial release. Hundreds of localities in 19 states use the PSA, but critics of it say that it disproportionately puts people of color at a higher risk of being held in jail pretrial.
Jocelyn Rosnick is one of those. She’s a policy director at the American Civil Liberties Union of Ohio.
“They’re riddled with bias,” she said. “They rely on criminal justice data and we know that there is bias from policing in certain communities all the way through sentencing.”
In March, the Supreme Court of Ohio announced some new requirements with regard to bail.
The court decided that all 28 counties with multiple municipal or county courts must adopt a standard bail schedule. This way, bail will not differentiate depending on the court you are in. It also requires release on personal recognizance as the first option before deciding if bail is necessary. The rule went into effect on July 1.
“I always say, you know, Neil Armstrong, he said, ‘that’s a small step for man and a huge step for mankind,’” Body said.
“Well, we will say, ‘that’s a small step for man, like Black men, especially Black men like me, that are disproportionately impacted by the system. It’s a small step for them. But it’s a huge step for Ohio. One huge step. We need plenty more steps.’”
Now, we move to a state that has seen major reforms to the bail system, New Jersey.
In March 2013, Luminosity in partnership with the Drug Policy Alliance published a report about the current state of jails in New Jersey. In the report were three startling findings. The first was that 71% of people in jails were either Black or Hispanic. The second was that about 50% of people in jails were not being held on violent crimes, sex crimes or weapon offenses. And the third was that almost 40% of the jail population was there because they could not afford to post bail. That means they were not serving a sentence, had no holds and could have been released if they had the money to pay.
In response to this report and other calls for reform, Chief Justice of the New Jersey Supreme Court Stuart Rabner put together a joint committee on criminal justice to find a way the system could be reformed.
Alex Shalom, senior supervising attorney and director of Supreme Court advocacy at the ACLU of New Jersey was a member on that committee.
The committee brought together a group of people who rarely see eye-to-eye. Politicians, prosecutors, public defenders, chief counsel for the governor and members of the legislature had the assignment of figuring out ways to reform the system without having to write new legislation.
Their decision was unanimous.
“That there was no way to tinker with the system,” he said. “The only way to fix the system would be to reimagine it, to transform it from a system that made its initial decisions about freedom or detention based on resources, how much money you have to one that made those decisions based on a perception of risk.”
So, that’s what they did.
The New Jersey Criminal Justice Reform Act took effect on Jan. 1, 2017 and it implemented the assumption that all people charged with a crime, other than those facing life imprisonment, are deemed innocent and should not be held in jail pretrial.
Now, when someone is arrested, a police officer has two choices: they can give someone a summons, which happens for most low-level offenses, or they can issue a warrant. A summons is just a ticket that tells the person to show up in court on a certain date. A warrant is what you would typically imagine as a usual arrest. The police officer handcuffs the person and takes them to the police station.
After an arrest, New Jersey uses the same Public Safety Assessment that is used in some counties in Ohio. But Shalom says the PSA doesn’t make a definitive decision. A lawyer is present with a defendant at every stage, even the initial hearing.
“That doesn’t decide anything, but it does inform the decision,” he said. “You have a lawyer at all stages, right? So the person is represented by counsel.”
An appearance hearing is held within 24-48 hours of someone being arrested, and at that hearing the judge reviews the PSA score and hears arguments from a prosecuting attorney and a defense attorney. The result of that hearing is either a release, a release with conditions like house arrest or electronic monitoring, or the defendant is held in jail and must be indicted within 90 days.
“Theoretically, the judge is also allowed to consider financial, money bail, but money bail can only alleviate the concern that you won’t show up. Money bail cannot be used to protect the public or to prevent obstruction,” he said.
Data from the ACLU of New Jersey shows that after the first year, almost 70% of defendants were issued a summons, not a warrant. Of those who received a warrant, almost 60% of cases were resolved or released after the first court appearance. Only about 6% of people who received a summons or warrant were detained. Despite these positive results, Shalom says there’s still work to be done.
“That’s on the positive side with these huge reductions in jail population, but our jails remain disproportionately Black and brown. And it’s still important that we have several 1,000 fewer people in jail now than we did before,” he said.
“But it also reminds us of how much work we have left to do. We want to have a system that’s a fair one. That’s one where liberty is respected and fairness is respected.”
Kentucky, Ohio and New Jersey aren’t the only states reforming the bail system. Illinois, California, New York, Pennsylvania and others are making reforms.
Some have taken drastic measures, completely reimagining the system, while others have started small and tried to build upward. There doesn’t seem to be a single right answer, but it seems likely that for dramatic change to happen, dramatic reforms need to be made with precise consideration. If West Virginia wants to make changes, it has a number of states it can learn from.