On Aug. 28, California became the first state to eliminate cash bail. The newly-passed law, under the bill name SB-10, goes into effect October 2019. It will give judges full authority to discern whether or not a person awaiting trial stays in jail or is released during that time.
In theory, this sounds like a step forward, but in effect it fails to address systemic bias toward race and class.
Whether or not a person gets released while their trial pends is determined by judges who will rely on technology known as pretrial risk assessments.
These tests are essentially algorithms that collect data from law enforcement, victims, prosecutors and the defense. Once obtained, the system then attaches a score to the arrested person: ranging from high, medium or low risk. According to the bill, their score estimates the probability of that person failing to appear for their court date or committing another crime.
If the person arrested is considered low risk, they will be released from jail because they are unlikely to threaten public safety or abscond from court. Those who are deemed medium risk, pose a moderate threat and would either be released or jailed until their court date. High-risk people, unless the judge decides otherwise, would be held until their date because according to the risk assessment algorithm, they have the highest probability to reoffend or not appear for their arraignment, according to the law.
This is a problem. Some risk assessment tests can be racially or economically biased as the tests collect data that ultimately end up punishing people who live in bad neighborhoods, have little education or come from unsupportive families. According to ProPublica, the data that this particular test takes into account, is no different.
If the data given to the judges from law enforcement factors in how many arrests someone’s had, their prior arrests might be used against them even if they weren’t convicted of that crime.
Now, instead of judges making decisions, a discriminatory algorithm will presume guilt before they even get a fair trial. This ultimately contradicts the presumption of innocence enshrined in the Constitution.
This law is also worrisome because it doesn’t provide oversight for judges and prosecutors who are making the decision to have people released from jail or not. Judges hold a great deal of power, but they are still people and people can become jaded, especially if they are overworked. Dealing with criminals, many who are repeat offenders, can drain someone’s hope and unintentionally create an attitude of bias.
However, some believe that the law isn’t all bad. Kevin Meehan, associate professor of criminal justice at Cal State Fullerton, suggests that by eliminating cash bail, it seeks to create an equal playing field between the economic classes.
“It accomplishes the goal of making bail more equitable for everyone,” Meehan said. “The longer you wait in jail, the more you want to get out. Especially if you have any responsibility for, or you believe you have responsibility for, say a spouse or children or whatever it is you are committed to. People will ultimately plead guilty to charges simply so they can get out of jail.”
What the law is trying to accomplish is respectable, but it isn’t addressing the real problem: bias. Bail doesn’t need reformation, bias does. Unfortunately, the justice system is deeply flawed and unfair. While some are actively trying to fix it, it’s far from perfect. Therefore, it’s a mistake to award an already faulty system with more power.
California needs to prove the justice system is fair and honest and that it works for the betterment of the people. While the state does try and eradicate the notion of innocent people taking guilty plea deals and offers the illusion of reducing its overcrowded jails, the good does not offset the bad.