State must make system just and protect the public safety
California’s money bail system is broken, unjust and unsafe. Reform is long overdue. It needlessly keeps too many people behind bars, weakening their connection to positive facets of their lives — jobs, housing, treatment and family. What’s worse, money is a terrible proxy for dangerousness, and some individuals simply pose too great a public safety risk to be released. For this reason, I recently asked the California Supreme Court to weigh in to ensure we move away from money bail safely.
Consider the fact that those who pose minimal risk to our community are often detained, such as the 32-year-old mechanic from Poughkeepsie, N.Y., who was arrested in October and charged with shoplifting a vacuum cleaner from a Target store. His bail was set at $5,000, despite the fact that he earns only about $10,000 a year. He was forced to sit in jail for months waiting for his case to be resolved.
Then consider that those who pose a real risk to our community’s safety are often released because they are wealthy and can afford bail. Next month, a man in San Francisco will be back in court for allegedly trafficking, drugging and raping a 15-year-old girl. After his arrest, he posted bail of $250,000 and was released pending trial. While out on bail, this same man is alleged to have assaulted and robbed a transit operator in addition to carjacking a Muni bus full of people. He was re-arrested, and in spite of my office’s efforts to keep him in custody, his bail was set at $143,000. Once more, the man posted bail.
Whether it’s the wealthy person who poses a risk to our safety, or the poor person who is detained solely because they can’t afford to get out, what these stories have in common is that both scenarios were made possible by a system of money bail that is as unjust as it is unsafe.
The rich can be risky, and the poor can pose zero threat. Yet for well over a century, the criminal justice system has divided defendants into two classes: those who can afford pretrial release on bail and those who have no option but to remain in custody until their case is resolved. This is not only unfair, it does not make us safer.
I have been working with our courts to move toward a system based on risk rather than wealth since 2011. In 2016, we implemented an algorithmic tool known as the Public Safety Assessment, which was created by a foundation using a database of more than 1.5 million cases drawn from more than 300 U.S. jurisdictions. The tool makes custody recommendations to the court based on more “experience” and case outcomes than any judge in history can claim.
What sets the tool apart from money bail is that counties using this data science are making custody recommendations based on a statistically significant prediction of one’s likelihood to re-offend before trial or fail to appear for their court date. What is similar to money bail, however, is that the tool will not be correct 100 percent of the time. Statistics suggest, however, that defendants released on money bail are about twice as likely to commit another crime pretrial compared to defendants released based on a recommendation from the tool. As a result, making these decisions based on risk rather than ability to pay is not only more equitable, it’s also yielding better results for our community’s safety.
This is a pivotal moment: We must move away from the ineffective and unjust monetary bail system of the past, but we lack a blueprint for an alternative that meets California’s constitutional standards and protects both public safety and victims’ rights. A recent California appellate court decision, People vs. Humphrey, dealt with a slice of the problem but has left many unanswered questions about how to proceed.
One of the effects of the Humphrey decision is confusion about the court’s ability to preventively detain some individuals with no bail. In practice, it has eliminated the court’s ability to rely on “do not release” recommendations made by the tool in all but the most violent cases. As a result, from individuals with multiple prior strike convictions to offenders facing serious gun cases, the courts lack clarity on when they can hold an individual without bail based on someone’s risk to public safety. We must clearly and carefully codify under which circumstances preventive detention is necessary.
I was an early proponent of moving away from money bail, as I believe data-driven assessments enhance public safety by making custody decisions based on risk rather than financial status. San Francisco can develop an objective and effective pretrial release and supervision paradigm that emphasizes liberty, public safety and limits detention. I am hopeful that the state Supreme Court will weigh in with clear guidance on moving away from monetary bail and toward a risk-based system guided by public safety and fairness that all 58 counties can follow.