Because of a computer algorithm, a man who had been arrested some 20 times, most recently for illegal possession of a handgun, was released from jail without bail and then allegedly killed someone.
This happened in New Jersey, but a local bail-bond company is worried that something similar could happen here.
“Everybody is on edge in the bail industry,” said Robin Sandoval-March, who with husband Nuri March runs Santa Clarita Bail Bonds.
That’s because state Supreme Court Chief Justice Tani G. Cantil-Sakauye came out last week in favor of reforming the bail system. The state’s Pretrial Detention Reform Workgroup, which she established in October 2016, determined that California’s current system “unnecessarily compromises victim and public safety because it bases a person’s liberty on financial resources rather than the likelihood of future criminal behavior and exacerbates socioeconomic disparities and racial bias.”
The report makes 10 recommendations, including using a validated pretrial risk assessment tool – an algorithm. New Jersey is one state that currently uses such a tool, called the Public Safety Assessment. It considers nine factors, including age, nature of the charge, convictions, failure to appear and incarceration, not geography, education level and family status, according to NJTV News.
The PSA was never meant to replace a judge’s discretion, and the questionnaire aims to predict whether someone charged with a crime will show up for court or commit a crime if released before trial, instead of relying on money for bail to get out.
The main problem Sandoval-March and her husband have with this algorithm is that it allows people to be released without bail with no guarantee that they will return to court, which is what bail promises.
“There’s no oversight,” March said. “These low-level criminals who break into houses and cars, if there’s no accountability, these guys are going to do it (commit crimes) multiple times because there’s no incentive not to.”
And who would pay for all these criminals skipping town? “The taxpayers will be on the hook for all the criminals who don’t show up,” March said. “The streets are not as safe. You’re putting criminals back on the street with no oversight.”
The concept of bail goes back to 11th-century England before the Norman Conquest. It began with the assumption that the penalty for most crimes was a fine paid to the victim. Bail was the amount of the fine, and the accused could be released if a third party would guarantee the accused’s appearance for trial and paying the fine on conviction.
Today, bail is the money or security a person accused of a crime is required to provide to the court to be released from custody, with the purpose of assuring public safety and the defendant’s future appearance in court. The vast majority of defendants who are released on bail in California rely on commercial bail bonds to secure their release, although the Eighth Amendment prohibits excessive bails.
Because so many poor and non-white people are incarcerated and unable to post bail, they languish in jails, and people have called for reform. New Jersey and New Mexico voters approved constitutional amendments that ended their reliance on bail and allowed judges to release defendants who aren’t considered dangerous or flight risks.
New Jersey’s using what Quartz Media calls “algorithmic justice,” raising questions about whether the formulas can ever be sufficiently nuanced to contend with the many complexities that criminal-court judges are forced to consider when making difficult decisions. For example, June Rodgers sued New Jersey Gov. Chris Christie and Attorney General Christopher Porrino for wrongful death after Jules Black got out via the algorithm and allegedly murdered Rodgers’ son, Christian, a few days later.
“It makes it difficult for a defendant to comply if he’s got no skin in the game,” March said. “The system is failing.”
Added Sandoval-March: “Law enforcement isn’t for this. Judges aren’t for this. Lawyers aren’t for this.”
But so far, New Jersey seems to be accomplishing at least its short-term goals. According to Quartz Media, fewer people are detained for lack of money today than in the past. A 2013 study found that almost 40 percent of defendants ordered out on bail stay in jail, unable to pay for their freedom. Now they’re released, regardless of finances, based on their risk assessment.
According to the New York Times, of nearly 3,400 new criminal cases in New Jersey in January, fewer than 10 percent of defendants remained detained and less than one percent got bail, while the rest were free to go.
California’s bail system is inequitable. Sandoval-March said someone accused of domestic violence in L.A. County can expect to pay $50,000 in bail for a felony charge and $20,000 for a misdemeanor charge. In Ventura County, she said, it’s half as much.
“We believe county bail schedules need to be looked at,” she said.
Additionally, there is Proposition 47, which the voters passed in 2014. The measure’s main effects were to convert many nonviolent offenses, such as drug and property offenses, from felonies to misdemeanors. These offenses include shoplifting, writing bad checks, and drug possession. The measure also included exceptions for offenses involving more than $950 and criminals with records including violence or sex offense.
That amount has caused problems, the Marches said. People accused of stealing less than $950 receive a “citation release,” which is a simple ticket.
“Once criminals find out, ‘I can do this crime, go to jail and get a ticket to appear?’ why wouldn’t you continue to do crimes?” March said.
In 2015, the Los Angeles Times reported that “law enforcement officials and others have blamed Proposition 47 for allowing repeat offenders … to continue breaking the law with little consequence.”
In a 2015 Washington Post story, San Diego police chief Shelley Zimmerman described Proposition 47 as “a virtual get-out-of-jail-free card.” She and other police chiefs also expressed concern about the increasing phenomenon of “frequent flier” criminals, people who exploit Proposition 47 to commit crimes. For example, one criminal allegedly brought a calculator into a store to avoid stealing more than $950 worth of goods.
March said Proposition 47 caused a 30 percent drop in business. “It loosened the bail system,” he said. “It made it easier for people to get out without bail.”
Sandoval-March said she feels the only way to fix this is for people to get involved and reach out to their representatives: Assemblyman Dante Acosta, Sen. Scott Wilk and Representative Steve Knight.
Acosta and Wilk are especially important because currently in the state Senate Appropriations Committee is Senate Bill 10, which, among other things would, starting Jan. 1, 2020, allow for some sort of algorithm to be used in determining an accused person’s pretrial risk assessment.
“This is a bedroom community,” she said. “People don’t know what to do. Talk to your local Assembly(man). Talk to your local congressman. It’s like a veil has been put over people’s heads.”