The U.S. is just one of two nations in the world with a money bail system; the other is the Philippines. The system means that people are held in jail while they wait for trial, unless they can afford to pay to go free. Defendants who can’t pay their way out of jail often lose their jobs, homes, children, and sometimes even their lives.
Courts across the country are starting to face legal and legislative challenges to their bail systems. And New Orleans has become a key battleground, as lawmakers try to shake its legacy as “the most incarcerated city in the most incarcerated state in the world.”
The bail bonds industry has argued that financial collateral is the only effective way to ensure defendants return to court for their trials. Starting in the spring, the Orleans Parish criminal district court decided to test this theory with a pilot program that came close to approximating what it would be like if the court eliminated bail altogether. It used a risk assessment tool to identify who was most likely to return to court without incident—and then it released them without making them pay.
The result? People released in the pilot returned to court at roughly the same rate as defendants in other commissioners’ courtrooms, according to a new report by the civilian court monitoring group Court Watch Nola. The rearrest rate was also comparable, although somewhat higher, at 4.5% rather than 2.9%. In all, 9 people out of 201 people in the program were arrested again after they were released without bail.
The findings help debunk warnings by opponents that replacing money bail will release dangerous criminals into the streets and allow fugitives to flee from justice.
These results were promising enough that the court expanded the program to all four commissioners’ courts in October. If implemented widely, the program could lead to a dramatic reduction in the city’s pretrial jail population.
At a press conference Wednesday morning, executive director Simone Levine noted that in the year observed by Court Watch volunteers, 36% of felony defendants at first appearances in magistrate court were considered “low-risk” for release—about three times the number of high-risk defendants appearing in court.
“This means that the biggest reason we are paying so much for unnecessary incarceration is to incarcerate defendants who will likely return to court and are not a danger to public safety,” Levine said.
“Low risk” is defined in New Orleans by a risk assessment tool developed by the Vera Institute that analyzes data like prior missed court appearances, criminal history, age, and residency to predict the likelihood that a defendant will be re-arrested or fail to appear in court if released before their trial.
Over the six months of the program, jail stays dropped dramatically for these defendants. In March, before the program began, low-risk defendants were sitting in jail for an average of twelve days. That quickly dropped to four days. By June, the average jail stay was two days.
A similar risk assessment tool produced by the Arnold Foundation is used in 38 local jurisdictions, and many of these places have reported similar success in reducing jail populations. The pretrial crime rate also fell in some places, according to the Foundation. One state, New Jersey, has gone even further, essentially eliminating bail statewide. The change has already led to a dramatic reduction in the jail population with no increase in crime. But representatives of the bail industry have launched aggressive legal challenges, noting that some individuals released were rearrested for other crimes.
New Orleans’s pilot program was a key step in a set of reforms the city has tried over the past several years. Though the risk assessment tool has been in place for years, many judges are still setting high bail amounts for low-risk defendants. In this latest effort, one commissioner who makes bail determinations, Jonathan Friedman, was encouraged to release low-risk defendants on only a written promise to return to court in lieu of a bail bond. If required by law to set bail on certain charges, the commissioner was encouraged to set it at just a few dollars or some other nominal amount that defendants could afford. He could also choose to require defendants to undergo pretrial supervision rather than send them to jail.
The city has made other recent moves to reduce its dependence on bail. In 2012, it started using pretrial services to release more people ahead of trial. Last year, the city passed municipal bail reform to eliminate bail for most minor offenses.
As bail reform gains more momentum, the industry organized around it is growing more frantic to stop it. New Orleans bail bondsmen mounted a massive lobbying campaign to try to stop pretrial services in 2012, while judges initially refused to implement the program, seeing the replacement of money bail as a “direct hit” to their budget.
Now that pretrial services have been in place for a few years, however, the current city administration has touted the program for saving millions of dollars in incarceration costs.
But it’s not out of the woods yet. This year, control of the program was transferred from the nonprofit Vera Institute to the same judges who tried to block it.
And Court Watch Nola found these pretrial hearings varied dramatically depending on the courtroom, making for “an uneven, haphazard type of justice, where constitutional rights are afforded depending on the judge in front of whom the defendant appears.” One magistrate judge even used an hourglass to limit the amount of time defendants can talk to their lawyers before going through these hearings.
Court Watch Nola raised the concern that financial support for pretrial services could be jeopardized with a new administration taking office next year. City Councilmember Latoya Cantrell and former municipal judge Desiree Charbonnet are headed to a mayoral run-off election on November 18, and neither has committed to protecting pretrial services’ funding.
“We will have a new mayor next year and so far this has really not come up on the campaign trail,” Levine said. “We think that this is an extremely important issue that really needs to be addressed by the candidates if they are going to be supporting this program or not. And if they don’t, we simply fall back to where we were before.”
Notably, one of Charbonnet’s top campaign advisers is Blair Boutte, a local bail bonds leader currently battling allegations that he kidnapped and extorted his clients, even holding them for ransom in his office until their family members could come up with a certain amount of money. Charbonnet helped enact bail reform for minor offenses as a municipal judge. But Boutte was one of the most active voices against pretrial services in 2012. He’s continued to helm the campaign against broader bail reform in the city. If Boutte and his fellow bondsmen succeed, the New Orleans jail might get a lot more crowded again. “We cannot go back to determining pretrial release by taking a stab in the dark,” Levine said.