Gabriel Cripe, Associate Member, University of Cincinnati College of Law
One day, we will look back on this time in our country’s history and be ashamed that we imprisoned so many people for no other reason than because they are poor. The negative impacts of America’s cash bail system have been well-documented. According to the ACLU of Pennsylvania, the cash bail system leads to mass incarceration, unnecessarily hurts individuals, families, and communities, disproportionately impacts people of color, and actually does a poor job of keeping us safe. Because these negative impacts are so well-documented, rather than re-hash those discussions, this article will evaluate some common alternatives to cash bail in the event that it is abolished.
The primary purpose of cash bail is to ensure the defendant appears for future proceedings related to their case. However, in United States v. Salerno, the Supreme Court legitimized another purpose for bail when the Court held that the Bail Reform Act, which allowed defendants to be denied bail entirely if no release conditions could assure the safety of the community, did not violate the constitution. Therefore, the purpose of cash bail is two-fold: first, to prevent the defendant from fleeing before the case can be adjudicated, and second, to protect the community.
Various bail reform efforts are taking shape around the country in states like Vermont, Alaska, Georgia, New York, and New Jersey—all have passed bills aimed at reforming the bail system. In 2021, Illinois became the first state to completely eliminate cash bail, effective in 2023. There are various alternatives to cash bail, but this article will focus on three of the most utilized: risk assessment tools, electronic monitoring, and personal recognize or “PR” bonds. While these forms will be analyzed separately, reform often requires a combination of approaches. For example, a risk assessment tool may lead a judge to impose electronic monitoring, grant a PR bond, or set bail.
This article will examine these alternatives and propose a preferred method for states moving forward. In Section II, this article gives a brief overview of each alternative. Section III will analyze the potential advantages and disadvantages of the option in light of the two-fold purpose of cash bail, risk of flight, and danger to the community. Finally, Section IV recommends jurisdictions give defendants PR bonds in most cases, with electronic monitoring and risk assessment tools used only in limited circumstances.
The section provides a brief overview and introduction to some of the common alternatives to cash bail including risk assessment tools, electronic monitoring, and PR bonds. Later, in Section III, the strengths and weaknesses of each approach outlined below will be evaluated.
A. Risk Assessment Tools
Risk assessment tools assign a numeric score to a defendant, representing the risk that the defendant will fail to appear or be re-arrested before the completion of the case if the defendant is released. Risk assessment tools are used in 28 states. There are various forms of risk assessment tools, but the common factors considered include the age of the defendant at first arrest, prior failures to appear in court, employment, prior convictions, prior prison sentences, the current charge, and housing stability and access. The characteristics of the specific defendant are entered into a system and the defendant is given a score. Once the factors are analyzed and a score is produced, the defendant will be deemed low, moderate, or high risk. The judge will then utilize the score to set the conditions of release. Judges are given wide discretion in how they utilize the defendant’s score and may ignore it entirely.
Some courts use the tool to set the amount of bail, while other courts look to the score to decide whether a defendant should be released without paying bail or be denied bail entirely and remain in custody. Therefore, if a defendant is unable to afford their bail, a low-risk score could justify their release without having to post bail at all. Alternatively, more affluent defendants, who may have received a much higher bail but were able to afford it, may be denied bail entirely under this model. In this way, the tool is designed to focus the bail decision on the risk of flight and danger to community without considering the wealth of the defendant against that risk. However, as this article will explore later, the factors considered in risk assessment can be inextricably linked to economic status and other factors beyond risk.
B. Electronic Monitoring
Electronic monitoring often takes the form of a wrist or ankle shackle that uses GPS tracking to monitor a subject’s location. Those on electronic monitoring are often not able to leave their homes or must stay within a certain area. Some counties include fees on the defendant for the use of the device. The use of electronic monitoring is on the rise. Between 2005 and 2015, use of electronic monitoring more than doubled. The purpose of electronic monitoring is to reduce the number of defendants detained pre-trial while still ensuring the defendants appearance in future court proceedings and protecting the safety of the community.
C. PR Bonds
A PR bond is an alternative to cash bail in which the defendant does not have to post bail at all. PR bonds are also referred to as “own recognize” or “OR” bonds. Instead of posting bail, defendants must sign a document promising to return to court for the rest of their proceedings. Just like any other form of bond, if the defendant does not show up for the court proceedings, they will be re-arrested. The judge has the discretion to place restrictions on the defendant after granting the PR bond, such as requiring the defendant to check in with an officer of the court periodically, compelling abstention from drugs and alcohol,  and limiting with whom the defendant can interact.  PR bonds are most often granted after the judge has determined that the defendant is neither a flight risk nor a threat to the safety to the community.
This section will analyze the above three alternatives to cash bail, assessing their effectiveness in furthering the primary purposes of bail: risk of flight and danger to the community. This section will also evaluate the potential downsides to these alternatives. Finally, this section will offer a preferred approach to states moving forward.
A. Risk Assessment Tools
Risk assessment tools were developed in response to the increased awareness of the negative impacts of cash bail. However, the implementation of this system has proven to be deeply flawed in a number of ways. Those who previously advocated for the use of risk assessment tools have begun to discourage their use. One such organization is the Pretrial Justice Institute (“PJI”), a nonprofit dedicated exclusively to pretrial system reform. In a study released in 2020, PJI found that risk assessment tools are constructed from biased data and therefore perpetrate racism. For example, risk assessment tools that look to the defendant’s employment do not control for the fact that, due to systemic racism, the unemployment rate for Black people is twice that of white people.
Furthermore, looking to prior convictions also contains inherently biased data. Eight percent of American adults have a felony conviction, but 33% of all Black men do, likely due to over-policing in Black communities. Black Americans are almost four times more likely to be convicted of marijuana related offenses than white Americans despite consuming marijuana at similar rates. Therefore, when controlling for all other relevant factors, a Black American who consumes marijuana would be four times more likely to have a higher score on the section analyzing prior criminal history than a white American who also consumes marijuana, simply because they are more likely to have been arrested and convicted for this offense.
Additionally, risk assessment tools may not be able to accurately predict whether someone is a flight risk or danger to the community. PJI critiqued the tools by writing that they make no distinction based on why the person is believed to be a “flight risk.” For example, the tool does not distinguish between someone who has the means to flee the jurisdiction and someone who has previously failed to appear due to lack of transportation, childcare, or employment issues. A person who failed to appear due to lack of resources does not pose the same flight risk as one who chose to evade the court of their own volition. Therefore, a person who otherwise would have appeared if the court helped ease some of these issues is instead detained as a flight risk. Furthermore, most risk assessment tools make no distinction between risk of any new arrest while the person is awaiting future proceedings and risk of an arrest for a violent crime. This is important context for a judge when determining whether to release a defendant, as one of the driving factors behind the bail process as a whole is the protection of the community. While no crime is desirable, a small chance of violent crime should be weighed more heavily than even a moderate chance of nonviolent crime.
Furthermore, some jurisdictions combine risk of flight and danger to the community into one category labeled “pretrial failure.” Therefore, a person with risk of missing court and a person with risk of any rearrest may both receive a higher score within the same “Pretrial Failure” category than they would without these risks. It is vital for a judge to know if someone is labeled “Moderate Risk” because they have previously failed to appear, or “Moderate Risk” because they have an increased risk of violence, and this tool does not always provide a means of differentiating these factors once they are reduced to a number. For the reasons outlined above, PJI wrote that risk assessment tools are “not able to do what they claim to do—accurately predict the behavior of people released pretrial and guide the setting of conditions to mitigate certain behaviors.”
However, some argue that risk assessment tools provide the judge with a research-based tool that applies objective factors in deciding whether to release a defendant. A study from Texas A&M found that risk assessment tools do, in fact, work. It found that the tools did successfully predict the probability of a defendant’s failure to appear. More research is needed to fully understand the tools capabilities and limitations.
B. Electronic Monitoring
Intuitively, electronic monitoring seems to further the goal of ensuring a defendant appears in court. However, this may not actually be the case. A 2017 study of pretrial defendants in New Jersey showed there was “no significant differences” in failures to appear for defendants who were on electronic monitoring and those that were not. However, proponents of electronic monitoring may argue that when a defendant who is being monitored fails to appear, the court knows exactly where the defendant is, and therefore can bring them in to court. The same is not true for a defendant without monitoring. Additionally, the same study from New Jersey found that defendants on electronic monitoring pretrial had “significantly lower rates of rearrest” than defendants without monitoring.
Additionally, electronic monitoring comes with some undesirable consequences. First, while electronic monitoring may decrease the risk of rearrest, Media Justice found that electronic monitoring may increase rates of domestic violence. They argue that many survivors of domestic violence who are under electronic monitoring are confined to “to the very place where they have been abused.” An alarmingly high number of women in prison have been victims of domestic violence and sexual assault. 79% of women in prison reported experiencing physical abuse and over 60% reported previous sexual abuse. Therefore, electronic monitoring, which prevents the survivor from leaving the home, may keep them in an unsafe environment.
Second, electronic monitoring makes it difficult for the defendant to obtain or keep employment. Before leaving the house, the defendant must receive permission from a judge or probation office. Often, it can be difficult for the defendant to maintain contact with the authorities to receive this permission to work. This may be due to the exceedingly high number of cases assigned to each probation officer. Furthermore, if their current employment requires them to move from site to site, like a construction worker, this on-going movement can be difficult to manage and get approved. Furthermore, the use of an electronic monitor puts the defendant in the unfavorable position of having to disclose their ongoing criminal case to their employer by making it obvious they are under electronic monitoring. Employers may be unwilling to hire or retain an employee who has an ongoing case.
Finally, while it is true that electronic monitoring is cheaper than incarceration, it is still expensive. Those on electronic monitoring can spend anywhere from $3 to $35 per day, plus $100-$200 in set-up costs. Every state, except Hawaii, requires the defendant to pay at least a portion of these costs. These additional fees can be crippling to a defendant, especially when combined with the potential negative impact on employment that electronic monitoring can have. Still, a thorough study from the Urban Institute found that there was an 80% chance that communities that implement an electronic monitoring program will see benefits that exceed its costs. This is because when electronic monitoring is used, criminal justice agencies save money at each stage of the criminal justice process.
C. “PR” Bonds
PR Bonds are, of course, the least restrictive of the analyzed alternatives. They essentially allow a defendant to continue with their lives while they wait for the court process to unfold. Therefore, the question becomes how well PR bonds satisfy the two stated goals of bail. Research shows that the risk of failure to appear after pretrial release are overestimated. A study from the U.S. Department of Justice found that 83% of felony defendants who were released pre-trial attended all scheduled court appearances. Further, after one year, only 3% of those charged with a felony had not returned to court.
When analyzing the impact of various forms of bail on failure to appear, the underlying reason for the failure to appear is vital. The majority of people who fail to appear are not fleeing the crime but have extenuating circumstances that may make a court appearance more difficult to attend. These factors include lack of transportation, difficulty obtaining childcare, inability to take time off from work, and others. This suggests that the relatively small number of failures to appear could be reduced even further by helping defendants eliminate these barriers to the court system without the negative consequences associated with cash bail, risk assessment tools, and electronic monitoring.
With bail reform occurring across the country, more data is emerging on how this reformation has affected crime rates. A study in New York, which recently banned detaining people pre-trial in most criminal cases, found that of those released, only 4% were arrested for a violent felony while awaiting further court proceedings. When a person who is out on bail commits a crime, especially a violent crime, opponents to bail reform latch on to these cases, leading to a disproportionate amount of attention. In one study from the District of Columbia, researchers founds that of those released before trial, 89% remained arrest free and only 1% of those arrested were arrested for a violent crime. However, it is important to note that studies evaluating failures to appear and pretrial arrests inherently evaluate a population of people the judicial system has already determined to be low-risk. Any more lenient form of pretrial release would inevitably include those with seemingly increased risk for failure to appear and rearrest, and thus, current data, while valuable, has its limitations.
When evaluating any alternative to the cash bail system, every potential advantage or disadvantage should be compared to the advantages and disadvantages of the cash bail system. Each alternative analyzed comes with its own challenges. Any reform to the cash bail system must be comprehensive and utilize multiples forms of reform.
First, PR bonds should be used in most cases. Defendants charged with misdemeanors and non-violent felonies should receive a PR bond. While a defendant is awaiting trial outside of jail, the court system should seek to connect the defendant with social service agencies to help them overcome the various obstacles to that defendant reappearing in court or re-offending while awaiting further proceedings.
Next, in violent felony cases, risk assessment tools may be utilized to assist the judge in determining whether pre-trial detention is necessary, or if the defendant should be released with restrictions. Because these tools have been shown to have severe limitations, the judge should have discretion on whether to follow the recommendations. Electronic monitoring should only be utilized as a last resort. When electronic monitoring is utilized, it should place the least restrictions on the defendant to further the primary goals of bail: flight risk and community safety. Therefore, the electronic monitoring should not track the defendants every move, but rather notify the authorities if the defendant has entered a restricted area, such as a certain distance of an alleged victim’s residence or place of employment.
Each of the alternatives to cash bail has its limitations. The best approach may be a combination of the above alternatives. When making the determination of which approach to use, the burden should be on the state to prove by clear and convincing evidence that any burden placed on the legally innocent defendant furthers the two-pronged goals of bail. Jurisdictions that have experimented with these alternatives are moving in the right direction with the ultimate goal of ending cash bail, an inferior approach to any of the analyzed alternatives.
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