California Replaced Cash Bail with Algorithms. How Are Bail Algorithms Used?

202002.10

The United States has for many years used a traditional bail system for determining the release of those arrested for a crime. When a person is arrested for a crime, they are often held in jail until their court hearing. For many years, to be released from jail before that hearing, those people would need to provide a cash bail. Cash bail is an amount of money determined that the courts will hold to ensure the defendant returns for their court date.

The bail-setting formulas used to determine the amount is often dependent on the type of crime, criminal history, and various other factors that may help to determine the defendant/s likelihood to return to court.

Bail-Bond-agency

Unfortunately, for those with little means, paying a high bail amount can be impossible. This often meant that the poor would be doomed to sitting in jail until their court dates. Regardless of guilt or innocence, being remanded to jail for any length of time can have serious impacts on a person’s ability to support themselves or their families. It also greatly impacts their ability to participate in their own defense.

Bail Bond System

Over the years, this bail amount became higher and higher. This led to the common use of a bail bond. A bail bond is when the bail payment is paid on the defendant’s behalf to guarantee their return to court. The defendant pays the bail bond agent a fee for this service. The bail bond agent then acts as a guarantee that the court will receive the full bond amount if the defendant does not appear at court.

When a defendant pays the bail amount on their own, it is returned to them at the conclusion of their court appearance. Unfortunately, many people arrested do not have that kind of money on hand. This forces them to seek the assistance of a bail bonds agent. The fees for the agents are often a percentage of the full bail amount. However, the defendant does not get the fee returned after their court appearance. For some people, even the bail bond fee is too high. If unable to afford either option, the defendant is required to stay in jail for the months or even years until their court date.

Bail Algorithm

In California, a new option is being considered with SB 10. SB 10 is the current legislation set to change the traditional bail system. Instead of evaluating bail on a monetary amount according to the crimes and the person, the bail investigator will use an algorithmic risk assessment. This bail algorithm is said to determine the risk of the person to not show for court. If they are a low risk, they will be released either on their own recognizance or a supervised recognizance. If they are considered high risk, they will be detained until their court date.

The change to the bail system is due to the fact that many people who are detained until their court date are not being held due to their risk but due to their poverty. Many people facing minor, non-violent crimes have been detained in the prison system simply for being unable to pay their bail or a bail bond agent while those who can afford the bail avoid jail time even if they are accused of more serious crimes or repeat offenders. The idea of this legislation is to provide people a fair method of release that is not dependent upon a person’s ability to pay.

How Does the Bail Algorithm Work?

Similar to all bail-setting formulas, when a person is arrested for a crime, there must be an assessment to determine the person’s risk of not returning to court. A bail investigator takes into account the various aspects of their crime and their criminal history to determine the statistical likelihood of a return. The bail is then set according to those factors. With the algorithmic risk assessment, there is less guesswork and statistical analysis needed for evaluating bail.

For minor, non-violent misdemeanor crimes, most defendants would be booked and then released within 12 hours. No evaluation would be necessary for these types of crimes and defendants would avoid jail time. For those outside of this group, they would face the evaluation process to determine their risk level. There are several factors in bail algorithms that are considered.
In general, these will include:
– The defendant’s age
– Their current charges
– Their criminal history
– Any records of failing to appear in court

Each of the factors in bail algorithms will be given a number that will provide a level of risk for each person. Any defendant who has a high-risk number or has committed a violent crime would be detained until their court hearing.

Risks of the Algorithm

Although this system seems unbiased on the surface, there are many concerns about its actual implementation. There are concerns that judges would want to appear tough on crime and detain defendants against the assessment. Some are concerned that the system would not look at the underlying information of the crime and base the risk higher or lower erroneously. Many still feel that this system can perpetuate racism and disparages toward the poor.

Most people agree that the traditional bail system is antiquated and biased towards minorities and the poor. Unfortunately, it can be hard finding a reliable method for replacing this system that is fair and unbiased while keeping the community safe.