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On any given day in the United States, there are approximately 450,000 unsentenced people in jails awaiting trial or sentencing. In 2015, California alone accounted for about 10 percent of that figure, with 45,000 unsentenced people in jails across the state. Many are there simply because they cannot afford to pay bail.

Rebecca Wegley

The money bail system was designed to ensure that people charged with an offense return to court for trial. In practice, however, it rewards those who can afford to pay and punishes those who cannot, without adequate consideration of guilt or risk. Incarceration can have serious negative impacts on the life, property, employment, and families of those who cannot afford bail. 

On July 5th, the Assembly Select Committee on the Status of Boys and Men of Color held a hearing in Oakland on reforming California’s money bail system. The hearing included expert panelists who discussed the human and economic costs of money bail and the impact it has on the criminal justice system. Members of the bail bond industry provided public comment asserting that their for-profit services protect society” and enhance racial justice”. But the panelists and other community members overwhelmingly agreed that the money bail system keeps low income people in jail and disproportionately impacts people of color.

The threat of bail is often used to leverage defendants into plea bargains, infringing on their due process rights and hampering their ability to mount a defense. Moreover, the current cash bail system unnecessarily clogs up jails and the criminal justice system with people who are not a risk to public safety. This does not promote justice or public safety.

Some courts have pretrial diversion programs designed to keep people who are not a flight or public safety risk out of jail while they await trial and sentencing. Even those deemed higher risk may be returned to their homes, jobs, and families by complying with program monitoring. These programs use a risk assessment tool to evaluate the likelihood of reoffending and the appropriateness of diversion from jail. However, not all risk assessment tools are created equally. ProPublica, in their investigative report Machine Bias”, exposed a private risk assessment software used by jurisdictions across the country that injects racial bias into straightforward assessments of risk.

The Public Safety Assessment (PSA) tool, created by the Arnold Foundation and recently adopted by San Francisco, is more transparent. The PSA algorithm calculates an individual’s risk score based on nine specific factors, including violent offenses, pending charges, previous incarcerations, and failures to appear. The creators say that it does not consider biased factors such as race, gender, income, education, home address, history of drug use, family status, marital status, national origin, employment, or religion in making a risk determination. While the PSA tool is promising, it may also present a new set of challenges for San Francisco – namely, resistance among prosecutors, defense attorneys, and judges who don’t understand the assessment or who disagree with its outcome.

California bail reform advocates and policymakers should support legislation that require all counties to establish and implement evidence-based and data-driven pre-trial diversion programs, which use open, objective, and transparent risk assessment tools. These programs should include a needs assessment component that pinpoints a tailored set of support services for each individual. These measures would help to reduce the destabilizing and potentially devastating impact that even minor charges and short incarceration terms can have on one’s life.