Will Federal Money Change State Bail?

Much as anyone who knew of Kamala Harris before her recent reinvention as a senate social justice icon might hate to say anything nice about her, suck it up and remember the blind squirrel. Harris has hooked up with Senator Rand Paul to push a new bill to use federal money to bribe states to change their evil bail ways and reduce pre-trial jailing due to poverty. They’ve written a joint op-ed to pitch the proposed law.

Bail is supposed to ensure that the accused appear at trial and don’t commit other offenses in the meantime.

They open with the story of Kalief Browder, which is somewhat ironic as New York, unlike other places, uses only the return to court criteria, and risk to the community isn’t a lawful factor for consideration. That’s not to say it doesn’t enter into the equation, but it shouldn’t.

The op-ed puts most of its effort into persuading people that this is both an unfair practice and an expensive one.* The former is based on the ramifications of detention, from its disparate impact on minorities and the poor, and the latter because we’re spending an enormous amount of money detaining people who can’t afford $1000 bail. The magnitude of expense in warehousing them, in combination with the impact on their lives, loss of jobs, homes, cars, while needlessly in the can, is outrageous.

But none of this is new to anyone remotely familiar with the system, and yet it has defied any fix despite the Kalief Browder story, or the Rikers Island scandals. Why should this time be different?

Our bail system is broken. And it’s time to fix it.

That’s why we’re introducing the Pretrial Integrity and Safety Act to encourage states to reform or replace the bail system.

This should not be a partisan issue.

Well sure, that’s what everyone says when they claim to be on the side of truth and justice. But why? States are beginning to try new approaches, from risk analysis assessments to something as simple and obvious as court-date reminder phone calls.

First, our legislation empowers states to build on best practices. Kentucky and New Jersey, for instance, have shifted from bail toward personalized risk assessments that analyze factors such as criminal history and substance abuse. These are better indicators of whether a defendant is a flight risk or a threat to the public and ought to be held without bail.

This is the Sentence-O-Matic 1000 for bail, empirical factors used to determine an individual defendant’s risk of flight and harm to the community. What immediately sticks out are the proffered factors, “criminal history and substance abuse,” which are proxies for poor and black. But the proposed law has a solution for this:

(A) replacing money bail systems with individualized, pretrial assessments that—

(i) measure the risk of flight and risk of anticipated criminal conduct posed by a defendant while on pretrial release; and

(ii) shall use risk-based decision making that includes objective, research-based, and locally-validated assessment tools that do not result in unwarranted disparities on the basis of any classification protected under Federal nondiscrimination laws or the nondiscrimination laws of the applicable State; (Emphasis added.)

So use factors that will appeal to the unwitting public, but cover up the disparities behind a caveat. After all, if the factors are “objective, research-based and locally-validated,” then any disparity would be warranted. After all, it can’t unwarranted because the law says that’s not allowed.

To achieve this panacea, Harris and Rand want to throw $10 million to each state, $3.5 million to cover implementation and the balance to bribe the states into playing ball.

Instead of the federal government mandating a one-size-fits-all approach, this bill provides Department of Justice grants directly to the states so each can devise and carry out the most effective policies, tailored for its unique needs.

Of course, the federal government mandates nothing of the sort, nor could it. It’s entirely up to the states to determine how to handle their own cash bail and pre-trial detention, subject only to the limits of the Constitution as applied via the Fourteenth Amendment.

Enabling states to better institute such reforms also honors one of our nation’s core documents, the Bill of Rights. In drafting the Eighth Amendment, which prohibits excessive bail, the founders sought to protect people from unchecked government power in the criminal justice system.

Of course, the Eighth Amendment’s been there for a long time, and hasn’t done squat to help up to now.** Suddenly it matters?

While efforts to reduce the detained jail population are and should be welcome, it being a blight on the system for a laundry list of reasons that have been discussed over and over, the question is whether throwing federal money at the problem is the fix, or just a waste of money.

The “solution” to this travesty has always been readily available.

This absurd mess could be cleaned up in a month, that being the period of time during which most defendants will take the bus ride from the Rock to the courthouse to spend their 30 seconds of due process before the court.  All that need happen is every judge review every bail fixed for every defendant who comes before him with an eye toward doing their job rather than avoiding the potential embarrassment of a defendant they cut loose committing another crime and getting their puss on the front page of the New York Post.

Then there are the arraignment judges, who fix needless bail in the first place, which is then perpetuated by subsequent judges who pretend that the bail was a deeply thoughtful, deliberate decision that should not be upset in the absence of the Pope’s vouching for the defendant.

Let’s get real here: nobody is running off to Tahiti to avoid a public urination prosecution.  Sure, they might forget to show, or try to stay under the radar, but either the cops will get them when they jump the turnstile of, if they manage to live out the rest of their natural lives without ever getting pinched, the public has been served.

Will shifting the justification from a judge shrugging off the defense’s argument for release to the prosecutor’s request for bail to the Bail-O-Matic 1000, that has a disparate impact but it’s totally, empirically warranted? Beats me. If judges refuse to take the risk of embarrassment from a bad call today, will they feel better if they can blame the Bail-O-Matic 1000? When we figure out the problem isn’t fixed, but at least know it’s not because judges are mean but empirical analysis says proxies for race and poverty warrant the disparity, will we feel better?

Getting the problem on the radar is always a good thing. Out of sight, out of mind. But throwing money at a problem that could be fixed for free if anyone wanted to seems to miss the critical point: judges are still going to be judges. Maybe the bribes should go to judicial salaries if you want to give judges a reason not to rubber stamp bail for the poor

*The op-ed states:

People awaiting trial account for 95 percent of the growth in the jail population from 2000 to 2014, and it costs roughly $38 million every day to imprison these largely nonviolent defendants. That adds up to $14 billion a year.

Clearly, that’s an enormous expense. But changes to the system, if they actually change anything, might reduce, but obviously won’t eliminate, the pre-trial jail population, making it unclear how much might be saved. Will we save more than the program costs? Who knows?

**The bill includes the following:

(6) In Bearden v. Georgia, 461 U.S. 660, 671 (1983), the Supreme Court of the United States stated that the due process and equal protection principles of the Fourteenth Amendment to the Constitution of the United States prohibit ‘‘punishing a person for his poverty.’’

Bearden is one of the most ignored decisions ever, which is why jailing people for not being able to afford fines and court costs, has turned jails into debtor’s prisons, Nice to see it recognized in the bill, but it would be nicer still for judges to apply it.

17 thoughts on “Will Federal Money Change State Bail?

  1. Billy Bob

    Amen! The Pretrial Integrity and Safety Act sure sounds good on paper. Will no doubt be honored in the breach. Judges will be judges. That judge is best who judges least and who covers up his civilian cloths with black robes. It’s really quite unbelievable. Been there, done that.

    This whole busyness is Byzantine. Note the deliberate misspelling.

      1. Billy Bob

        Many a slip twixt cup and lip.
        Pop Quiz! Who said that?
        Strong coffee and early onset Allah Zheim Disease most likely. Did you ever notice how the talking heads, when asked a question by the moderator, first answer by saying, “That is a very good question”?
        Oh puhleeeze, just answer the question. Never mind whether it’s a good question or a bad one!

  2. wilbur

    ” this bill provides Department of Justice grants directly to the states so each can devise and carry out the most effective policies, tailored for its unique needs.”

    Court administrators and criminal justice program directors are gleefully rubbing their hands together in anticipation of cranking out their grant-seeking proposals.

    Federal grants (sigh) – Is there anything they can’t do?

      1. Neil Faiman

        You wrote “to push a new BAIL to use federal money …”. A particularly felicitous typo.

  3. Jake


    1. Is the Bail-O-Matic 1000, built as proposed, superior to the current state of affairs, even if only slightly?
    2. Is there any design of the Bail-O-Matic 1000 you would accept? In other words, if you were given the task of writing the algorithm that makes a determination for each defendant, would you?

    1. SHG Post author

      I’m much better with the Bail-O-Matic 1000 than the Sentence-O-Matic 1000. Bail is largely a blind shot, working off a rap sheet and a write up, no evidence, 30 seconds of argument and a knee-jerk decision by a judge, who has nothing more to go on. In NYC, there is an official interview done by CJA which includes the criteria that would be fed into the Bail-O-Matic anyway.

      One gap would be the opportunity for defense counsel to “explain” that bench warrant from 3 years ago (“he was hit by a car and in the hospital, judge”) or that an open pot arrest was dismissed and never closed out on the rap sheet. One of the biggest things pointed out at arraignment is that the deft has family in the audience, which suggests a support system to keep the deft coming back. Not sure how the Bail-O-Matic could account for that.

      So would the Bail-O-Matic be superior or the same? Beats me. But it’s definitely a much closer call than the Sentence-O-Matic.

  4. KP

    I would’ve thought they’d be looking ahead to a time when bail is no longer used at all.

    The giant computer cities being built by the security alphabet will track everyone every day, that’s what the taxpayer is stumping up billions for.

    Use a plastic card, travel on public transport, walk past a street security camera, get filmed in a shop, use a smart phone, drive a net-enabled car or use a taxi.. Isn’t the whole idea to track every Amercian so they can see the bad guys planning somehitng?

    When you miss Court your name pops up the next day as being … riiight.. THERE! Pick that man up and toss him inside.

    Seems the politicians are behind the 8-ball again.

Comments are closed.