Bail reform continues to be a controversial topic in the criminal justice field, and for good reason. American taxpayers spend approximately $14 billion a year on pretrial detention, and with just over four percent of the world’s population, the U.S. has almost 20% of the pretrial population.1, 2 Nearly two-thirds of the people in U.S. jails have not been convicted of a crime, and on any given day, more than 450,000 people remain in jail whom a judge has deemed low-risk.3, 4 Legislative reform that eliminates cash bail for pretrial defendants is needed, but raises many questions and concerns.
How is risk assessed? How are individuals being monitored pre-conviction? Does crime increase when defendants remain in the community pretrial? Are there benefits for states and counties that divert individuals from jail?
Pretrial risk assessment tools use algorithms and actuarial data to predict the likelihood a defender appears in court with no new arrest during the pretrial period. These tools are designed to assist, not replace, judicial decision-making and discretion. Research shows that validated risk assessment tools can improve the accuracy of defendant risk, compared to decisions that rely solely on subjective judgement.
The removal and regulation of cash bail diverts pretrial defendants from jail, resulting in a significant shift in the criminal justice system. Agencies need to adapt to support an increase in pretrial monitoring to keep communities safe and individuals accountable. Similar to probation and parole, pretrial monitoring manages risk to community safety, failure to appear in court, and the risk of these individuals committing future crimes. Pretrial monitoring works to help individuals, presumably innocent, make their court appointments and provides resources to help them remain crime free until trial.
Benefits of Bail Reform
Research shows that shifting resources from pretrial incarceration to community supervision not only decreases jail and prison overcrowding, but saves taxpayers dollars. Community supervision programs that leverage technology enable courts and agencies to monitor pretrial defendants while lessening the burden on prisons and jails. Successful reentry planning coupled with technology-driven programs and services can positively impact outcomes. In some states, research suggests that electronic monitoring equipment has helped decrease failure to appear rates, through device notifications, defendant/officer communication, and sobriety checks. In Maryland, bail reform decreased the state’s failure to appear rate from 10.1% to 9.2%.5
In addition to saving taxpayer dollars, bail reform removes the bias that the current criminal justice system has towards poor individuals and people of color. Money bail has long been criticized for disproportionately affecting poor people and minorities, civil rights, and racial justice, and criminal justice reform advocates for years have worked to eliminate it.6
What Does Bail Reform Mean for Electronic Monitoring?
As state and federal lawmakers continue to enact legislation that reduces the use of cash bail, the need for electronic monitoring as an alternative to detention is escalating. Currently, only seven states have fully implemented bail reform legislation including Alaska, California, Illinois, Kentucky, Maryland, New Jersey, and New York. In California, electronic monitoring usage nearly tripled, a 200% increase from pre- to post-reform.7 Similarly, New York’s electronic monitoring pretrial population grew from 2,162 in September 2018 to 3,543 in September 2020.8 Although there are only a handful of states that have successfully passed laws to reform bail, almost all U.S. states have a history of moving in this direction. Criminal justice reform regarding pretrial bail goes back four generations, and it’s apparent that legislation around the topic will continue. Agencies need to be proactive and prepare for the potential increase of pretrial individuals that will require electronic monitoring.
Technology Tailored for the Pretrial Population
Based on individual risk, solutions such as alcohol detection, GPS tracking, and mobile monitoring can be used to supervise individuals, helping them to stay accountable while they await trial. BI Incorporated understands that pretrial defendants are innocent until proven guilty, and the needs of this population may be different from individuals on probation or parole. BI supports agencies with systems that are effective, varied, and fair alternatives to jail. We offer a full continuum of products, intuitive software platforms for officers, and mobile apps to keep low- and high-risk defendants engaged in the court process.
1Pretrial Justice Inst., Pretrial Justice: How Much Does It Cost? (2017).
2d. at 5, 13 (pretrial percent); Michelle Ye Hee Lee, Does the United States Really Have 5 Percent of the World’s Population and One Quarter of the World’s Prisoners?, WASH. POST (Apr. 30, 2015), http://wapo.st/1Q2ymvo [https://perma.cc/6PGN-8HV2]
3Todd D. Minton & Zhen Zeng, Bureau Of Justice Statistics, Jail Inmates At Midyear 2014, At 4 (2015).
4Roy Walmsley, Inst. For Criminal Policy Research, World Pre-Trial/Remand Imprisonment List 2 (3d. Ed. 2016).
5Pretrial Justice Reform: A Pathway for A Safer New York. New Yorkers United for Justice. (n.d.). https://nyuj.org/resources/pretrial-justice-reform-a-pathway-for-a-safer-new-york/.
6See Rachel Smith, “Condemned to Repeat History? Why the Last Movement for Bail Reform Failed, and How This One Can Succeed,” Georgetown Journal on Poverty Law and Policy (Spring 2018), available at https://www.law.georgetown.edu/poverty.
7“Ankle Monitors Are Replacing Cash Bail, But at A Cost.” Law360, www.law360.com/articles/1271391/ankle-monitors-are-replacing-cash-bail-but-at-a-cost.
8Fresh Facts on Crime: Post-bail-reform New York City by the Numbers.” Daily News, https://www.nydailynews.com/opinion/ny-edit-rearrest-report-nypd-policing-bail-reform-crime-20210205-x6x7plsrljajthbm2s7cuvyvty-story.html.