Buckeye Institute: Go back to the drawing board on bail reform

Buckeye Institute misses the mark on Bail Reform

by Jeff Clayton, Executive Director, American Bail Coalition

You may have recently seen the report from from the Buckeye Institute, entitled “Money Bail” Making Ohio A More Dangerous Place to Live.  This report contains so many errors and incomplete information that, frankly, it should be discarded.  Yet, we wanted to take an opportunity to counter some of the claims made in the report and set the bail reform debate into the proper context.

First, “money bail” is not making Ohio a more dangerous place to live.  The bail system in Ohio is essentially the same one being run since statehood.  The right to bail is enshrined in the Ohio constitution, and Judges have discretion to set the “type, amount, and conditions” of bail.  This is also why 69% of judges in a recent National Judicial College Survey did not agree with the elimination of money bail from the system. 

Second, what does the Buckeye Institute’s new bail utopia cost?  New Jersey’s program, given as an example, will run out of money on July 1, 2018 unless the legislature completely overhauls the funding of that program.  The costs to implement such a program were in excess of $1 billion in California.  Added to that, not only are there not savings, as both Administrative Judge Glenn Grant in New Jersey and the California Chief Justice concur, the costs of shifting away from monetary bail to risk assessments and supervision will largely not materialize and the cost the State and Counties millions of dollars.

Third, the litany of examples cited by the report as horrifying cases where someone was able to post bail begs the question as to what the Buckeye Institute would do with such cases. Yet, the Ohio Constitution already covers this, giving the power to prosecutors to prove the danger or risk of flight and deny bail.  The report suggests that somehow a risk assessment will fix the problem, yet the results of the assessment do not relieve a prosecutor of having to put up the proof necessary to achieve the result.

The report argues that several jurisdictions are seeing tremendous results due to bail reform, but this relies on the results generated by a private foundation that provides a free proprietary risk assessment tool and does its own evaluation of the results.  It should come as no surprise that they think it works.  Instead, in sworn testimony, a national expert testified in federal court that the Lucas County, Ohio program has very high failure rates, including 47% of high risk cases.  As a result of that testimony, the attorneys in the case concluded that Lucas County, Ohio had created a culture of “non-accountability” in its bail system. 

In San Francisco, the report issued there found that 27% of defendants did not show up under the risk assessment model.  In New Jersey, the state has failed to release any numbers, and the report’s citation to crime figures does not prove that bail reform has anything to do with that since New Jersey’s prison population has declined every year for 15 years – and the population had been declining by double digits leading up to bail reform.  Of course, New Jerseys’ algorithm is releasing prior felons in possession of firearms, counting them as low risk, similar to what is going on in New Mexico.

Risk assessments are indeed not a magic bullet, and there have been serious criticisms lodged against them which the Buckeye Institute report completely ignores.  Researchers at New York University concluded: “The use of such systems by public agencies raises serious due process concerns, and at a minimum they should be available for public auditing, testing, and review, and subject to accountability standards.”  Former US Attorney General Eric Holder has also cautioned jurisdictions who using risk assessments saying they “may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society.”  Several additional recent studies and experts have called into question the race and gender neutrality of such algorithms, and the jury is certainly still out on that question.  Indeed the utter lack of transparency of such algorithms is of serious concern.

The Buckeye Institute decides to then demean the bail industry for helping persons exercise their right to bail in Ohio and provide accountability to the Courts.  The report cites no statistics on the effectiveness of surety bail in Ohio.  That’s not to say that adjustments cannot be made, but national data as well as data in Ohio back up the fact that private bail is effective and efficient because it is typically a third-party benefit provided to the State and a defendant at no cost to the State.

Sadly, the Buckeye Institute has sunk to the level of citing newspaper articles as some proof of the key points it makes.  It does such surface-level analysis that clearly the conclusion informed the selection of the “research” that is cited.  For example, the fact that 57% of persons in jail are awaiting trial tells us nothing—how many of those persons are on a non-monetary hold?  Or, what is their prior criminal history, and what would the risk assessment say about them based thereon?  How many are there because their attorneys are advising them to take a time-served deal?

The Buckeye Institute needs to go back to the drawing board with its assessment of bail reform.  Moving away from “money bail” has not proven to deliver on its promises.  While adjustments to the system can always be made, putting our blind faith in “black-box” algorithms to fix the problem is not only unproven, it is simply naïve.

Back to the drawing board…

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