Robin Steinberg Opinion contributor This week, California became the latest state to adopt legislation designed to reduce the tragic injustices of its cash bail system. Unfortunately, its well-intentioned effort will exacerbate rather than alleviate the very injustices it was designed to cure. Central to every American’s understanding of justice is that people are presumed to be innocent, and that holding innocent people in jail before they've been tried (or found guilty of any crime) is a bad idea. the problem with cash bail is that it created a two-tiered system of justice — one for the rich and one for everybody else, effectively putting a price tag on that presumption. Hundreds of thousands of low-income Americans are forced to sit in jail because they are too poor to afford bail and often plead guilty just to get out. California’s new system eliminates cash bail but replaces it with two things: expanded discretion for judges and a system of “risk assessments,” which assign a score to people to determine who is eligible for release before trial and who should be held, not on bail, but without any hope of release at all. Rather than reduce the number of innocent people sitting in jail cells, the new system has the potential to increase it, while entrenching racial disparities and hiding them behind the rhetoric of science. Taken together, these factors could create a system that is worse than what California had, in the heartbreaking name of bail reform. Related content POLICING THE USA:A look at race, justice, media COLUMN:Detention at border has caused psychological damage. Families need help. The government should pay for it. COLUMN:As prison strikes heat up, former inmates talk about horrible state of labor and incarceration Algorithms kill the individual Risk assessments reduce the complexity of human behavior to a set of data points and turn questions of due process, veracity of evidence and law, into matters of statistical probability. Rather than closely assessing the strength of the evidence in the case being presented, these computer models use algorithms to assess, among other things, how someone's age, employment, drug use and criminal history will influence whether he might flee or commit a crime before trial. This "Minority Report" approach (attempting to predict violations before they happen) guts the presumption of innocence. Worse, the California model gives judges discretion to ignore a recommendation of release. Make no mistake about it: Cash bail has always been a tool of coercion, used disproportionately against people of color, in order to extract guilty pleas in exchange for freedom. It is also a key driver of mass incarceration. Pretrial detention accounts for virtually all of our jail growth in the past 20 years. The human cost of this crisis cannot be overstated. Yes, unaffordable cash bail must end. But rather than follow the California model, we must, at a minimum, ensure that whatever replaces cash bail does not increase pretrial incarceration rates and recreate the harms and biases of the current system. That's already seen in other uses of risk assessment and similar tools. Lucas County, Ohio, started using risk assessment in 2015. Data released last year showed that the county was keeping more pretrial defendants locked up with the tool than without. A 2016 ProPublica study showed that an algorithm designed to predict who would commit a future crime was biased against African-Americans. A similar tool used to assess the risk of recidivism for juveniles used age more than anything else to predict whether a juvenile would commit a violent crime. Assessments like this reduce the complexities of individual experience to group data. Kentucky has been using risk assessments for years, but the tool has yet to improve rates of pretrial release. A small, initial uptick in pretrial release eventually disappeared when judges fell back to using their own discretion and continued to lock people up. The increase in pretrial crime and failure to appear was negligible. Release people with adequate services There is a simple, just alternative to this tragic retrenchment. In order to truly address the injustices of bail, we must look at the lessons of the past decade, and adopt thoughtful and humane practices that can make the presumption of innocence a reality for all. The success of community bail funds (groups that pay bail for those who can't afford it) around the country shows that with adequate court notifications and social service support, it is entirely possible to ensure that people will return to court — a key purpose of setting bail in the first place — even when their own money is not on the line. Text reminders can reduce failure to appear by 26%. Conducting needs assessments for transportation, child care and other common obstacles to court return can also help improve these outcomes. What about folks who are charged with something scary? It’s important to remember that a charge is just that — a charge, an accusation. Before someone is held in a jail cell pretrial, prosecutors should be required to produce real, objective evidence at an adversarial court hearing that grants the accused rigorous procedural protections, including the right to cross-examine prosecutorial witnesses and call witnesses, and of course the right to have a lawyer by your side. Most of those elemental protections are tragically absent from bail hearings across this country. Wouldn’t we all want this basic guarantee for our sons and daughters and doesn’t justice demand at least that much? It is important to remember that fixing the cash bail system alone will not solve the social problems that feed our jails and prisons, but getting it wrong can make those problems even harder to retract. California has been a laudable thought leader on many important issues, but this is a misstep. It is unpardonable that legislators chose to ignore the voices and concerns of impacted communities who brought these injustices to a political spotlight. Risk assessments are not a model to be followed by other states, and they are no way to end the injustice of cash bail. Robin Steinberg is the CEO of The Bail Project and a senior fellow of the criminal justice program at UCLA School of Law.<doc-sep>A sign advertises a bail bond company on August 29, 2018 in Los Angeles, California. Photo : Mario Tama ( Getty Images ) California Gov. Jerry Brown signed legislation Tuesday that will make his state the first in the nation to abolish cash bail for suspects awaiting trial. But what looks like a victory for criminal justice reform on the outside is actually an opening for a new system of inequality. Advertisement As the Washington Post reports, when Brown signed the bill, he said the California Money Bail Reform Act would ensure that “rich and poor alike are treated fairly.” The state’s current bail system allows judges to assess cash bail for a defendant’s pretrial release at a set amount based on a “bail schedule” that varies from county to county. The new law, which goes into effect in October 2019, would do away with the cash system. Instead, judges would rely on a pretrial assessment process that factors in previous offenses and flight risk in determining whether a defendant should be released or held in “preventive detention.” According to NPR, most misdemeanor nonviolent offenders would be released within 12 hours. The scoring system would look at other offenders and base a decision on their likelihood to show up for their court date, the likelihood of recidivism, and the seriousness of their crime. However, there are too many ways for this “bail reform” to lead to further systemic oppression for people of color. It still leaves room for people who have not been convicted of any crime and are not guilty of any crime to be held in jail anyway. It leaves too much up to a judge’s determination. And that is the same argument made by the ACLU of California, which pulled its support of the bill for that very reason. Advertisement The ACLU’s Natasha Minsker told NPR: “We are concerned that the system that’s being put into place by this bill is too heavily weighted toward detention and does not have sufficient safeguards to ensure that racial justice is provided in the new system.” Yes, we want cash bail abolished, but we also need reform of the pretrial detention system as a whole. Removing the cash option and leaving it to a judge’s interpretation of what an “algorithm” spits out about a defendant seems as if we are jumping out of the frying pan and into the fire.<doc-sep>
US President Barack Obama visits the cell where Nelson Mandela, an anti-apartheid activist, was once jailed on Robben Island, on June 30, 2013. Paying homage to the 94-year-old former South-African president, who is critically ill in hospital, Obama stared into the stark cell where Mandela spent two thirds of his 27 years in jail. AFP PHOTO/JIM WATSON (Photo credit should read JIM WATSON/AFP/Getty Images) About 6,000 U.S. inmates to be released from prison (CNN) — California will end the cash bail system in a sweeping reform for the state. Rather than requiring defendants to pay in order to be released before trial, their release will hinge on an assessment of their risk to public safety. “Today, California reforms its bail system so that rich and poor alike are treated fairly,” Gov. Jerry Brown said in a statement. Brown signed the bill Tuesday, and the new law goes into effect October 1, 2019. California is the first state to eliminate money bail completely, according to the Pretrial Justice Institute, an organization that advocates for pretrial justice reform. Critics have long contended that the money bail system perpetuates inequality. While some people are able to quickly get out of jail by posting bail, people who aren’t able to afford it sit in jail until the court takes action, or until they work with a bail bond agent to secure their freedom, which can leave them in debt. “Abolishing money bail and replacing it with a risk-based system will enhance justice and safety. For too long, our system has allowed the wealthy to purchase their freedom regardless of their risk, while the poor who pose no danger languish in jail,” said Assemblymember Rob Bonta, one the lawmakers who introduced the bill, in a statement. Under the new law, a pretrial assessment would be done by either court employees or a local public agency that has been contracted to determine a defendant’s risk. That entity would assess the likelihood that the person will not appear in court or commit a new crime while released, and would make a recommendation for conditions of release. The defendant will be assessed as high, medium or low risk. A person who is deemed as high risk, including those arrested for violent felonies, will not be released. The California Money Bail Reform Act, also known as Senate Bill 10, passed in the State Senate with a vote of 26-12, and the General Assembly by 42-31. “SB 10 puts all Californians on equal footing before the law and makes public safety the only consideration in pretrial detention. This critical reform is long overdue,” Toni Atkins, Senate president pro tempore, said in a statement. But the ACLU in California expressed disappointment over the bill, saying it “is not the model for pretrial justice and racial equity that California should strive for.” “It cannot guarantee a substantial reduction in the number of Californians detained while awaiting trial, nor does it sufficiently address racial bias in pretrial decision making,” said the three executive directors of the California ACLU affiliates, Abdi Soltani (Northern California), Hector Villagra (Southern California) and Norma Chávez Peterson (San Diego & Imperial Counties). “Indeed, key provisions of the new law create significant new risks and problems.” The organization pulled its support for the bill earlier this month as the it underwent changes in the state legislature. CNN’s Cheri Mossburg contributed to this report.