2018 Will Be Pivotal Year For Bail

Happy New Year!  I confess, this last year, my 35th working in the bail industry, was a trial indeed.  Spending more than 75 nights away from home, it was my busiest travel season yet.  Regrettably, this time was not all spent on promoting our company, American Surety Company, but rather working with my peers in the industry to preserve a vital component of the criminal justice system that has been around for more than a century, surety bail bonds.

The warriors of social justice have been working double time to replace judicial discretion on determination of bail with an algorithm based risk assessment tool that many state legislators, state supreme courts justices and state courts have been quick to support, perhaps too quick.  In the wake of their hasty decisions, many have suffered (e.g. crime victims, law abiding citizens and yes, even those charged with committing crimes).

The opponents of accountability have proclaimed the expanded pretrial release systems currently operating in New Jersey and New Mexico to be a glowing success.  So too, the free bail systems put in place in El Paso and Houston, Texas.  In actuality, these systems have been complete failures with skyrocketing failure to appear rates of which the local power holders have been diligently trying to protect by withholding critical data from public access.

As anticipated, the risk assessment tool is getting push back from various entities across the country.  The Utah State Legislature recently took on that states Supreme Court asking for a delay in changes made to the rules of criminal procedure for which they oversee.  Those changes would have implemented the Arnold Foundation’s risk assessment tool impacting pretrial release decisions.  The court acquiesced to allow the legislature to study further the efficacy of risk assessment algorithms.

New Mexico Governor Susana Martinez has been vocal in recent months calling for the repeal and replacement of a constitutional amendment that overhauled that states bail system.

New York Governor Andrew Cumo was sent an email last November from a group of “Over 100 Community & Advocacy Groups across New York State” voicing their concerns regarding the use of risk assessments, calling the tool dangerous, ineffective and a move that would exacerbate racial disparities and cause jail over-crowding.

The New York City council passed Introduction 1696-2017, in December.  A local law that will create a task force to conduct an 18-month study of, in part, the possibility of racial bias in the various uses of computer algorithms related to age, race, creed, color, religion, national origin, etc.  The bill was sent to Mayor Bill de Blasio for his signature December 17, 2017.

Look for more states in 2018 to consider amending their constitutions to expand the language that would permit judges to preventatively detain individuals awaiting trial.

Additionally, convening state legislatures will be considering bail reform in California, Delaware, Florida, Michigan, New York, Ohio and Utah.  Federal legislation is still pending and opinions differ on whether that legislation has legs, given the current composition of the U.S Congress.  Power could shift in the 2018 mid-term elections changing the outlook on both state and federal legislative initiatives.

Look for rulings to come down in federal lawsuits involving the issue of bail now pending in the 5th and 11th Circuit Courts of Appeal.  Trial begins February 12, 2018, in Buffin v. San Francisco, a case where the California Bail Agents Association have successfully intervened.  Regardless of the outcome of these cases, at least one case is expected to be appealed to the U.S. Supreme Court.

Clearly, there are plenty of battles still before us.  With the continued efforts of the American Bail Coalition, state bail associations and many other stakeholders, those of us interested in a criminal justice system that holds criminal offenders accountable and protects society and victims of crime, can prevail.

One thing is for certain, 2018 will be a pivotal year for criminal justice reform.