U.S. Jurisdictions Take Steps To Reform 'Dishonest' Bail System As many as a third of defendants in urban areas remain in jail because they could not post bail. An increasing number of states are changing that with risk-based systems of pre-trial detention.
NPR logo States And Cities Take Steps To Reform 'Dishonest' Bail System

States And Cities Take Steps To Reform 'Dishonest' Bail System

Katherine Lubar/Illustration Works/Getty Images
U.S. jurisdictions have begun to implement risk-based systems of pre-trial detention as a potentially fairer and more effective alternative to traditional money bail.
Katherine Lubar/Illustration Works/Getty Images

Retired architect Tom Chudzinski had been travelling the western U.S. in his motor home when he awoke one night to local sheriff's deputies knocking on his door in New Mexico.

Smelling alcohol on Chudzinski's breath, the officers arrested him on the suspicion that he had crashed his RV into a parked vehicle at a nearby truck stop. Although they hadn't seen him driving, they booked him into an Albuquerque jail.

Chudzinski couldn't make bail, so he remained behind bars for 34 days.

"I just had no choice but to sit there," Chudzinski recalled. While the drunken-driving charges stemming from his arrest were eventually dropped, Chudzinski has faced harsh consequences since leaving jail.

He lost his motor home, and all of the possessions inside of it, to an impound lot. He couldn't afford the impound fees to reclaim the vehicle, so for the three months following his release, he lived in homeless shelters in Albuquerque.

It is stories like these that propelled the New Mexico legislature to approve a state constitutional amendment to reform the use of bail for defendants awaiting trial. The amendment became law after winning the support of 87 percent of voters in this year's election.

The state thus joined an increasing number of U.S. jurisdictions that have begun to implement risk-based systems of pre-trial detention as a potentially fairer and more effective alternative to traditional money bail.

A discriminatory system?

Reformers argue that current bail practices leave poorer individuals in jail while their wealthier, and possibly more dangerous, counterparts go free. It is common for judges to set bail based solely on the charges a defendant faces, without regard to the defendant's criminal history or financial means.

"It's really a dishonest way of detaining people," said Leo Romero, who chairs a committee the New Mexico Supreme Court appointed to lead the state's bail reform effort.

The state high court prompted the reform effort with a ruling in 2014 that found that a defendant had been wrongly detained for more than two years on $250,000 bail. Walter Brown had been charged with murder, but the justices concluded that "uncontroverted" evidence showed he was not likely to pose a flight or safety risk if released. He had no criminal record or history of violence beyond the unproven murder charges. Plus, he would have family and community support outside of jail.

In a unanimous opinion, the justices noted that the purpose of bail is to assure a defendant's appearance in court by the least restrictive means possible. "The public doesn't realize that it's illegal for the judge to consciously use the amount of bond as a way to prevent someone from being released," Chief Justice Charles Daniels said in an interview with NPR.

National data show that in 2009 a third of felony defendants in large urban counties remained in jail, because they could not post bail. The median cost of bail was $25,000 at the time, and that cost is particularly acute for poor defendants.

Since 2015, several federal courts have declared the use of money bail for individuals who are too poor to post bond to be unconstitutional. Last month, San Francisco's city attorney declined to defend the city's bail system against a legal challenge brought by the civil-rights organization Equal Justice Under Law.

Risk-based alternatives

In recent years, dozens of cities and states throughout the country have begun to explore risk-based alternatives to bail. For example, the amendment New Mexico voters approved in November bars judges from detaining low-risk arrestees who can't make bail if they pose little threat of danger and are likely to appear for upcoming court dates.

Romero's bail-reform committee has also proposed a rule to require judges to release low-level defendants who have been charged with misdemeanors or petty misdemeanors and have not been arrested in the previous two years.

Municipal courts in 50 cities in Alabama have adopted similar reforms, according to an announcement by the Southern Poverty Law Center last week.

New Mexico's bail amendment, however, permits judges to detain high-risk felony defendants if clear and convincing evidence shows that only such "preventive detention" will protect public safety.

"The fact that this is providing new authority to detain dangerous defendants," Daniels observed, makes the amendment "comprehensive" and was "a large driver" of its success at the polls.

Some speculate that ballot language, which mentioned preventive detention before the possibility of no-bail release for low-level defendants, misled a large proportion of voters concerned about public safety into approving the amendment. "It was meant to emphasize that you could hold a dangerous defendant," said Albuquerque public defender Jeff Rein, who represented Walter Brown at the New Mexico Supreme Court.

In the end, "the only people who were really opposed to the amendment were people like the Criminal Defense Lawyers Association," observed another public defender, Jonathan Ibarra.

Indeed, the defense group and the ACLU withdrew their support for the amendment when lawmakers, buckling to pressure from the bail-bond industry, added language allowing judges to require proof of poverty from defendants who say they can't make bail.

How do judges make accurate risk assessments?

Courts in Albuquerque are testing a risk-assessment program from the Laura and John Arnold Foundation.

The computer program uses the criminal records, current charges and age of defendants to compute individualized flight and safety risk scores to guide pre-trial decision making. It has gained increasing popularity with jurisdictions throughout the country, and last year the foundation reported that 29 cities and states, including Chicago, Charlotte, Arizona and New Jersey, had adopted it.

Informed by risk scores, judges can release low- or medium-risk defendants on their own personal recognizance or set conditions for supervised release. Six states — Colorado, Hawaii, Nevada, New Jersey, Vermont and West Virginia — recently passed legislation to establish or expand pre-trial service agencies to administer conditions for release such as monthly phone calls, drug testing and electronic monitoring, according to a report by Harvard Law School's Criminal Justice Policy Program.

Not everyone is in favor

Law-enforcement officers have reservations about the use of computer programs to assess risk.

"It's important for judges and prosecutors to realize that these tools are meant to assist with their judgment, not to replace it," said Raúl Torrez, the newly elected District Attorney of Bernalillo County, where Albuquerque is located.

Torrez said he will have his office build its own risk-assessment system in case the program the courts ultimately adopt does not strike the right balance between defendants' rights and community safety.

"We're in totally new territory," he said. "As with all things, the devil is in the details."

Judges are hesitant, too. In Pittsburgh, for example, local judges followed recommendations from a risk assessment program in only 6 in 10 cases in 2014, according to a report the Institute of Politics at the University of Pittsburgh released last month.

In New Mexico, bail committee chair Romero identified "the mindset" of judges and lawyers who are conditioned to the existing bail system as the biggest obstacle to reform. "They grew up with this system," Romero said, "They found it easy to apply."

New Mexico Chief Justice Daniels also acknowledged the pressure elected judges feel to hold defendants on high bail amounts so that "they will have less criticism from the public for letting someone out if that person gets out and commits another crime."

"It's really really difficult to convince a judge not to set a bond," public defender Rein added. "There has to be a lot of courage for the whole system to work right."

In short, the ultimate test of whether bail reform will amount to much is now taking place in New Mexico.