In a New York Times Op-Ed, Brigham Young lawprof Shima Baradaran claims that  her research shows how courts can safely release 25% more pre-trial detainees, thus significantly reducing jail overcrowding.

The risk of release can be largely reduced by arming judges with more data to inform their decisions. Frank McIntyre, an economist, and I recently examined data from over 100,000 felony defendants over a 15-year period, and we found very clear trends regarding which defendants are more likely to commit crimes while free on bail.

For example, judges often detain too many older defendants (people over 30), defendants with clean records and defendants charged with fraud or public order offenses — in other words, people who are less likely to commit crimes while out on bail. On the other hand, judges release too many young defendants with extensive records, people who are more likely to break the law while awaiting trial.

Ignoring, at the outset, that bail determinations are based on both risk of flight, and limiting it to her chosen factor, risk of the commission of new crimes, that’s it?  Which judges are setting unreachable bail for older defendants with clean records and cutting younger defendants with long rap sheets free?  Where is this happening?

Is it that simple, that there is an epidemic of judges who are so incredibly incompetent that they are making bail determinations backwards? 

In the law review article referenced in the op-ed, Baradaran talks about predicting violence.  Not all defendants, young or old, are there for acts of violence.  Not all priors are about violence.  If Young Steve has twenty arrests for smoking a blunt on the street corner, where the cops kept tripping over him despite their efforts to be there when the new tray of donuts greeted the day, his rap sheet will be lengthy indeed.  Completely inconsequential, and utterly  meaningless in terms of violence, as Young Steve is more than happy to hang with his buds and pass around the doobie, but still long.

And where are these courtrooms stuffed with middle agers with clean records, remanding them for fear that at 37, they will embark on a career of carjacking when their single alleged wrong to date was dipping in their employer’s cash register?

Baradaran says that her research is extensive, comprehensive, clear and overwhelming, that she knows what to look for when deciding whether to keep somebody under lock and key.  And the answer is?  Nowhere to be found in this op-ed.  I didn’t read her law review article beyond the abstract. 

But if she’s going to write an op-ed for the Gray Lady, then I fail to see why I have to indulge in such self-loathing.  Either say something meaningful or stay off the op-ed page.  This isn’t a teaser for the 6 o’clock news, forcing one to watch until the bitter end to find out which common household item will likely kill your children.

For at least the almost 30 years I’ve been in the well, I can’t remember a time when judges were expected to concern themselves with either jail overcrowding or the cost-benefit of a bail determination.  Like the bunker buster bombs dropped on Baghdad, cost was irrelevant.  It was something that just had to be done, whatever the cost.  The youngest and rawest recruits in the District Attorneys office would argue for huge bail for first time offenders, or small but simply unreachable bail for the most inconsequential crimes by a guy whose entire personal wealth consisted of a bottle of Thunderbird, and judges were left to sort it out.

Baradaran notes that bail decisions by judges tend to come from the gut rather than anything remotely resembling some empirical perspective.  That’s not entirely correct, at least in New York City courts, where the Criminal Justice Agency would interview defendants, ascertain their community ties in relation to their prior criminal history, and offer a recommendation based on an overly simplistic paper model.  It wasn’t much, but then, neither is what Baradaran offers.

She argues that alternatives to pretrial detention, like GPS and house arrest, aren’t being used to their maximum advantage.  It begs the question of whether defendants who can’t afford bail can pay the costs associated with techno-jail, and leaves one to wonder who is going to be monitoring the people released, given that there aren’t a bunch of probation officers sitting around now eating bon bons.  But when needed, it’s certainly an alternative that isn’t regularly considered.

The upshot of this op-ed is that it makes this situation, the over-detention or excessive-bail of pre-trial defendants (meaning people who have yet to be found guilty of anything) sound as if its a product of a nation filled with idiotic judges who just can’t tell the difference between the guy who ought to be out and the vicious young predators.  How trading incarceration of one group for another changes anything isn’t clear, but that’s what she says.

Historically, judges erred on the side of higher bail rather than lower.  It wasn’t their job to take risks, either with their careers or other people’s safety.  The result was far too many people held in jail pending trial, for reasons that were far more rhetorical than real.  It’s easy to explain why a person poses a threat, either of the commission of a new crime or the failure to return to court as required.  It’s far harder to take a chance, and there were few incentives beyond sheer humanity, to let defendant’s walk out of court.

The problem Baradaran raises, that we can significantly reduce the jail population by making more cost effective decisions at the setting of bail, is real.  The solution requires either a more effective incentive system for judges to stop taking the easy route, if in doubt, lock ’em up, or a better way for judges to confidently distinguish the defendants to be released from the ones who will go out and do harm. 

If only Shima Baradaran had written an op-ed that offered something, anything, to aid in the determination.  But she didn’t.  And we’re not smarter after reading her op-ed than we were before. Maybe less so.