Report Grades Bail Systems Across The U.S., And Only One State Gets An A

As activists and lawmakers make strides in overhauling controversial money bail practices around the nation, a new report is helping the public to understand what successful reform looks like.

The nonprofit Pretrial Justice Institute released its first state scorecard on Wednesday, grading all 50 states on their pretrial justice practices. The report issues a letter grade for each state based on its pretrial detention rate, its use of pretrial risk assessment and its reliance on payment as a condition for release before trial.

“We wanted to be able to take stock today and also have something to measure it by on an annual basis,” said Cherise Fanno Burdeen, CEO of the Pretrial Justice Institute. “Things are changing so quickly out in the field in terms of policy examination and potential change.”

Despite recent progress on pretrial justice reform, the nation as a whole gets a D grade, and only New Jersey gets an A. 

New Jersey’s 2014 bail reform law went into effect at the beginning of the year, largely eliminating the old monetary bail system. Pretrial services agencies now conduct individualized assessments based on a defendant’s flight risk and potential threat to community safety, and provide courts with release recommendations. Under the new system, money bail is used only as a last resort.

The number of people awaiting trial in New Jersey jails dropped by 15 percent over the first six months of the year, and by more than one-third between mid-2015 and mid-2017.

“Crime is actually down 14 percent this year in New Jersey, with a 7 percent drop in violent crime,” said Burdeen. “We’re not saying those are correlated; I’m simply saying there’s also no correlation between pretrial release of appropriate people and some skyrocketing crime rate in New Jersey.”

Across the U.S., many states and jurisdictions still rely on money bail, meaning most defendants including those facing only low-level charges must pay to get out of jail before trial.

Those who can’t afford bail can be stuck in jail for weeks, months or longer just because they’re poor. Others turn to commercial bail bond agencies to secure their release. These businesses charge a nonrefundable service fee, usually 10 percent of the total bail amount, which means defendants or their friends and families can be left paying hefty fees, even if the charges are dropped or if the defendant is never found guilty of a crime.

These practices contribute substantially to the U.S. problem of mass incarceration. There are nearly 450,000 people who have not been convicted of a crime in jails across the country. They make up nearly two-thirds of the jail population, and about 20 percent of the overall incarcerated population. Locking these people up costs U.S. taxpayers approximately $38 million every day, or $14 billion annually, according to a Pretrial Justice Institute report published earlier this year.

Critics of money bail say it perpetuates an unconstitutional, two-tiered system of pretrial justice. It allows wealthy people to buy their freedom without any consideration of their flight risk or threat to safety, while poorer people are left to languish behind bars before any determination of guilt. Many poorer defendants choose to plead guilty just to get out of jail, regardless of whether they actually committed a crime.

A number of states and jurisdictions have begun to reform their bail practices in recent years. A series of high-profile  lawsuits have accelerated progress at the local level, successfully challenging so-called “wealth-based pretrial detention” and forcing judicial officers to reduce their reliance on money bail. Statewide legislative action to change bail practices is currently underway in California, Alaska and Connecticut. Other state court systems are exploring voluntary changes as well.

Although the Pretrial Justice Institute gives poor grades to the majority of states, Burdeen says the report does carry some good news. One-quarter of people in the U.S. now live in jurisdictions that use evidence-based pretrial assessments to determine release, for example. And many state and local reforms are in the process of being implemented, which means their results may not show up in the data for another year or two.

For the failing states, Burdeen said the purpose of the scorecard isn’t to shame, but rather to emphasize the urgent need for action.

“The fact that a state has a D or and F means that there are people living in those states under broken systems,” said Burdeen. “Those are real people who are sleeping in those jails tonight. We’d like to see these really bad grades start some much-needed discussions in those jurisdictions.”

See the full scorecard here.