University of Utah Law Professor – serving up naive solutions that have failed for two generations

University of Utah Law Professor Shima Baughman’s research on bail reform consists of nothing more than beating up an oversized straw-man and serving up naive solutions that have failed for two generations.

by Jeff Clayton, Executive Director, American Bail Coalition

The University of Utah is apparently quite proud of its work to end mass incarceration, a trend it erroneously notes is increasing.  So proud, in fact, that the University issued a press release trumpeting the work of one its law school faculty members, who believes that bail reform is the key to ending mass incarceration in the United States.  Unfortunately, this new research is premised on some glaringly false assumptions.

First, Professor Shima Baughman is quoted in the release describing what appears to be a huge problem to which she has found the solution: “Almost 90 percent of people who are arrested cannot get out of jail before trial just because they don’t have $200 or $500 to pay to a bail bondsman.”  This is absolutely false.  The total prison and jail population in the United States in 2013 was 2.2 million persons.  Of those, approximately 500,000 are in jail pending resolution of a criminal case.  If Professor Baughman were correct in her assumptions, then we would expect that of the 10.7 million arrests made in the United States last year, 9.13 million additional people would be in jail pending trial.  This so far from reality it strains the imagination to think that the police could arrest and detain 90% of persons pending trial.  In fact, Libya, as the second highest rate of pretrial incarceration in the world, is only able to lock-up 87% of all arrestees.  In Connecticut for example, only 7.4% of persons arrested are detained pending trial, and that number includes non-monetary holds, time-served deals on advice of counsel, and preventative detention in addition to cases where persons do not post bail.

The second false talking point the Professor decides to sling, without any numbers, is that “most of the people in jail have not been convicted of any crime.”  While Professor Baughman could have said there are some percentage of persons in jail not convicted of the present offense, concerning which she does present some statistics, she instead adopts the national talking point that all defendants awaiting disposition of their cases have not been convicted of “any” crime.  No research backs this up, and in fact the data is exactly to the contrary.  Generally, most persons in jail have previously been convicted of a crime.  In Connecticut, the data showed that 78% of persons awaiting trial in jail on a misdemeanor charge had three or more prior felony convictions.  So, most of those awaiting trial have a significant criminal record, a fact not explored by Professor Baughman.

Third, this narrative of not been convicted of “any” crime is intended to then buy into the next national talking point that all defendants not convicted of the present offense enjoy the presumption of innocence, which then means they should not be in jail or have to post bail.  Yet, perhaps Professor Baughman, like the cadre of elites leading the charge on bail reform, forgot about a landmark Supreme Court case that says the exact opposite.

In Bell v. Wolfish, the Supreme Court held as follows:

“The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.  But it has no application to a determination of the rights of a pretrial detainee during confinement before his trial has even begun.” 

Actually, it appears that Professor Baughman did not forget, she just does not want to inform her readers that she wants to over-rule the Supreme Court.  She recognized in a previous paper in 2011 that “the presumption of innocence no longer protects defendants before trial” pursuant of course to black-letter U.S. Supreme Court case law.

The press release then notes Professor Baughman’s support for the federal legislation to end mass incarceration, which is wrongly described as an “overhaul” of the bail system.  Yet, what she fails to realize is that giving $9 million in grant funding to the Trump Justice Department to implement her reforms, even if they would work, would not even begin to make a single microscopic dent in the problem.

Of course, what is the solution that will fix mass incarceration in this country?  A computer program is Professor Baughman’s answer.  This has been tried and implemented for a generation, and the results have not proven to do much of anything to reduce mass incarceration.  Kentucky has been doing this very thing since 1976.  The result—the per capita incarceration rate is 32% higher than the rest of the nation.  Of course, the Professor wants to protect the presumption of innocence she wants to apply at arrest by using computer algorithms that look at the prior crimes of defendants and weight those heavily in bail decisions.  Apparently, this is a new doctrine where the presumption of innocence selectively applies when a law professor feels it should or should not.

In addition, the Professor and the University of Utah cannot resist falsely attacking private bail agents by stating that defendants are “taken advantage by bail bondsman who often charge high fees and prey on disadvantaged people after an arrest.”  Apparently the Professor is unaware that state departments of insurance regulate the fees that can be charged, the procedures they must follow, and the fees have to be based on actuarially sound science.  Competition checks abuses—those who prey on defendants and families will lose business to bail companies that provide a better service.  Nationally, interest is generally not allowed to be charged on payment plans, which makes bail a better deal than payday lending companies, high interest loans, credit cards, or loan sharks.  We would also ask how helping someone get out of jail and be free from interference by the state is “preying on a disadvantaged person.”

So, over at the University of Utah, research can now apparently consist of misstating the law and distorting the facts to:

1. make repeat criminal defendants more sympathetic than they really are.
2. define the problem as 1,800% larger than it is to create a King-Kong sized straw-man.
3. conclude that computer algorithms used for two generations are now the easy answer to deflate the inflated balloon of the problem.

Of course, once you do this research over at the U of U, you then write a press release touting it as the “first comprehensive analysis of bail since 1970.”  We would assume the myriad of researchers who have done various comprehensive analyses of bail in the last half-century, which are too numerous to count and too voluminous to store on Google Cloud, would probably disagree.