U.S. jurisdictions move to end money bail for low-risk defendants

Story: 2016 C.E.  |  Last updated: December 17, 2016

In 2016 C.E., retired architect Tom Chudzinski sat in an Albuquerque jail for 34 days — not because a judge decided he was dangerous, but because he couldn’t raise enough money to walk out. The drunken-driving charges against him were eventually dropped. By then, he had lost his motor home, his belongings, and his housing. His story, and thousands like it, helped push New Mexico voters to approve a sweeping constitutional amendment to overhaul how courts decide who stays locked up before trial.

What the evidence shows

• Bail reform: New Mexico voters approved a constitutional amendment in 2016 C.E. with 87 percent support, barring judges from jailing low-risk defendants solely because they cannot afford bail.
• Money bail inequity: National data from 2009 C.E. show that one-third of felony defendants in large urban counties remained in pretrial detention simply because they could not post a median bail of $25,000.
• Risk assessment tools: By 2016 C.E., 29 cities and states — including Chicago, New Jersey, and Arizona — had adopted a risk-scoring program from the Laura and John Arnold Foundation to guide pretrial release decisions.

A system built on wealth, not risk

The traditional money bail system works simply: a judge sets a dollar amount, and if a defendant can pay it, they go home to await trial. If they can’t, they stay in jail — sometimes for months or years — regardless of whether they actually pose any threat to the public or risk of fleeing.

Critics have called this arrangement openly discriminatory. “It’s really a dishonest way of detaining people,” said Leo Romero, chair of the bail reform committee appointed by the New Mexico Supreme Court. A wealthier defendant charged with a violent offense can often buy their freedom. A poorer defendant charged with a minor offense cannot.

The New Mexico Supreme Court spotlighted the problem in a 2014 C.E. ruling. Walter Brown had sat in jail for more than two years on $250,000 bail after being charged with murder — despite having no criminal record, no history of violence, and a support network waiting for him outside. The justices ruled unanimously that the purpose of bail is to secure a defendant’s court appearance by the least restrictive means possible, not to function as a mechanism for indefinite detention of the poor.

What reform looks like in practice

New Mexico’s amendment gives judges clearer tools in both directions. Low-risk defendants charged with minor offenses can be released without financial conditions. High-risk defendants charged with serious felonies can be held without bail at all — if prosecutors can meet a clear and convincing evidence standard. The new framework tries to match detention decisions to actual public safety risk rather than to a defendant’s bank account.

Six states — Colorado, Hawaii, Nevada, New Jersey, Vermont, and West Virginia — passed legislation in recent years to build or expand pretrial services agencies. These agencies can supervise released defendants through check-in calls, drug testing, and electronic monitoring, giving courts an alternative to the binary of cash bail or a jail cell.

In Alabama, municipal courts in 50 cities adopted similar reforms, according to the Southern Poverty Law Center. Since 2015 C.E., several federal courts have ruled that jailing people who are too poor to post bond is unconstitutional. San Francisco’s city attorney declined to defend the city’s bail system against a legal challenge brought by Equal Justice Under Law.

The role of algorithms — and their limits

Courts in Albuquerque began testing a risk-assessment tool developed by the Laura and John Arnold Foundation. The program analyzes a defendant’s criminal record, current charges, and age to generate a numerical risk score. Judges can use that score to decide whether to release someone on their own recognizance, impose supervised conditions, or seek detention.

The tool has spread quickly, but not without skepticism. In Pittsburgh, judges followed the algorithm’s recommendations in only six out of ten cases in 2014 C.E. Law enforcement officials warn that risk scores should inform judgment, not replace it. Newly elected Bernalillo County District Attorney Raúl Torrez said his office planned to build its own assessment system to ensure the right balance between defendants’ rights and community safety.

There are also concerns about what gets baked into any algorithm trained on historical criminal justice data. Scholars and civil rights advocates have noted that records shaped by decades of unequal policing can encode existing disparities into supposedly neutral tools. The Harvard Law Review and others have documented how risk scores can reproduce racial disparities even without explicitly using race as a variable.

Lasting impact

The momentum visible in 2016 C.E. has continued to ripple outward. New Jersey eliminated cash bail almost entirely in 2017 C.E. California passed a law to do the same in 2018 C.E. — though it was later suspended by a referendum backed by the bail bond industry. The movement has reframed a basic question in American law: should freedom while awaiting trial depend on what you can afford?

For people like Tom Chudzinski, that question is not abstract. The 34 days he spent in jail before charges were dropped cost him his home, his possessions, and months of his life. Systems that replace money bail with evidence-based risk assessments have the potential to prevent those cascading harms for thousands of people each year — particularly those in poverty, who are disproportionately Black and brown.

Blindspots and limits

Bail reform does not automatically produce a fairer system. Risk-assessment algorithms have faced serious scrutiny for potentially encoding racial bias through the historical data they rely on. New Mexico’s amendment also drew criticism from public defenders and the ACLU after legislators added language — under pressure from the bail bond industry — requiring defendants to prove their poverty before a judge could waive financial conditions. Reform, in short, is a process, not a destination, and the details of implementation determine much of its real-world impact.

Read more

For more on this story, see: NPR

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