16-year-old Kalief Browder was arrested on the accusation of a stolen backpack. He was then brought before a judge where his bail was set at $500, a fee he and his single mother could not afford. Failing to provide bail, he was detained and spent the next three years of his youth sitting in jail at Rykers Island, awaiting trial and refusing to plead guilty to a crime he did not commit.
Two of those years were spent in solitary confinement, and one year after his release, upon being found innocent, he committed suicide. Kalief Browder was a victim of America’s broken cash bail system and his story is not a singular one.
In 2016, nearly two-thirds (65%) of people in jail were being detained prior to trial. This can have a myriad of effects on innocent peoples’ lives. It could mean losing their jobs.
For a parent, it could mean a child loses their caregiver. For somebody living in a homeless shelter, it could mean losing their bed. For an immigrant, it could mean losing their status. The effects of just a few days in prison are extensive.
As people spend long periods of time awaiting trial, they often choose to plead guilty, resulting in a higher likelihood of jail time and a more punitive sentence. While the cash bail system is designed to have a judge set bail at a reasonable amount to be used as collateral to ensure that the defendant comes back for their trial, the system as it exists today is far from reasonable.
In California, the median bail is $50,000, a price much higher than the average person could afford. Rather than ensure people come back to trial, the cash bail system today perpetuates a justice system that is unequally punitive to the poor.
California Proposition 25, Replace Cash Bail with Risk Assessments Referendum addresses these inequalities and if passed will replace the cash bail system with a more equitable risk assessment system that bases detention on crime rather than income.
The risk assessment system is a comprehensive, empirical system that is designed to calculate whether a defendant will be either a risk to society or to not appear at trial if released.
The system is calculated according to the following factors: current charges, outstanding arrest warrants, pending charges at the time of arrest, active community supervision at the time of arrest, history of criminal convictions, history of failure to appear, history of violence, residence stability over time, employment stability and community ties.
Rather than being based on income, this system takes a holistic view of a person to decide whether they should be detained. Ultimately, the score that a person receives based on these factors is broken into three categories — low-risk, medium risk and high risk.
A low-risk person would be recommended for release within twenty-four hours of booking, a medium risk person would be recommended for release with monitoring or supervision and a high-risk person would be set for a detention hearing and would stay in custody pending trial unless the defense lawyer can make a convincing argument otherwise.
Implicit bias, human error and various oversights are an unavoidable aspect of the cash-bail system in which judges make decisions based on hunches and require defendants to pay their way out. The implementation of the risk assessment system as an empirical tool for judges allows for a more equitable approach to pre-trial decisions.
An analysis of a pretrial risk assessment system finds that this system is able to, “have a positive impact on pretrial decisions and outcomes.”
In Washington D.C. in 2017 where this system was utilized, 94% of people were released, 88% of them were not re-arrested, and only 2% were rearrested for violent crimes, with 86% of them returned to court for their trial, according to NPR.
The current system of cash bail that we have tries to achieve these same results by locking up innocent people. However, a risk assessment system is proven to carry out justice without locking millions of innocent, poor people in jail pending trial.
On a large scale, the replacement of a cash system with one based on risk will aid in reducing mass incarceration, a phenomenon that disproportionately affects poor people and people of color. A report to the United Nations ties these together, stating that a way to reduce racial disparity in the U.S. criminal justice system is to implement a “well-calibrated and transparent risk-assessment instrument.”
In Atlanta, starting in 2013, a similar risk assessment system was implemented to replace the cash bail system, and it decreased the prison population by 19% as of 2017. When we abolish the cash bail system, people accused of minor crimes who are disproportionately people of color can be released with the ability to keep their jobs, their children and their shelter with the presumption of innocence.
Another reason to vote for Proposition 25 is that a risk assessment system is actually more cost-effective than the cash-bail system.
In 2017, the U.S. spent $13.6 billion on pretrial detention. On the other hand, the D.C. court system, upon implementing the risk assessment system, saved $45 million a year, totaling to $398 billion from 1992 to 2016. Not only can the risk assessment system make the justice system fairer, but it can also actually be considered an investment that has the potential to save taxpayers billions of dollars.
There are a lot of changes to be made to the justice system in America, but one of the most blatant attacks on the poor and on people of color in our justice system is the use of cash bail.
In this country, we have created two different systems of justice: one for the rich and one for the poor. In California, a step to reducing this equality is voting for Proposition 25 to abolish the cash bail system and replace it with a risk assessment system.