Bail laxness in NO endangering community

If data from other cities indicate anything, New Orleanians’ suffering only will grow because of ill-considered bail reform policies.

The numbers continue to accumulate for a number of cities that over the past few years, several in just the past year or so, have sought to minimize, if not eliminate, the role of cash bail in determining the pretrial circumstances of criminal defendants. They don’t look good; across America, significant increases in criminal activity, especially homicides, and in repeat offenses have occurred in cities that very publicly ratcheted down the likelihood of requiring bail and/or its amounts for those accused of crime, including violent crimes.

Bail as a concept tries to encourage trial appearance. Paying a refundable amount upon appearing discourages becoming a fugitive, and typically if a defendant doesn’t have it a bondsman will front the money for a fee something like 12 percent of the balance. If not paying bail, the charged person is incarcerated until and through the trial. The amount theoretically is set so that it’s low enough that people not a threat to the community can secure release, but for those that are (and in a few instances the law doesn’t allow for bail because of accusation of such a heinous crime assumes a person inherently dangerous to the community) it will keep them jailed and unable to harm society.

Critics maintain that even small bail amounts, even through bondsmen, some defendants, including those innocent, can’t pay, resulting in their spending time, perhaps months, in jail. Not only does this create unnecessary hardship for the innocent, even the guilty but who don’t otherwise threaten the community can’t perform productive activities, such as caring for family and/or working. By contrast, they argue more parsimonious use and lower amounts generally, relying on some kind of scoring system that deliberately produces these recommendations, promotes fairer outcomes than from prosecutor or judge discretion.

Unfortunately, real life has revealed these expectations as unrealistic, if not invalid. Some no/low-bail advocates have championed a combination of scoring systems and intense scrutiny of individual cases to make a recommendation that in the vast majority of cases would require no bail. However, practice has shown for this to work without a significant number of mistakes – such as the surging crime by released defendants recently observed in jurisdictions reliant on this – such pretrial services administration is extremely expensive to which no major jurisdiction not funded by the federal government has committed.

With the cash bail elimination policy of recent vintage, not much research has been conducted on the issue, and much of it is sloppy in method and/or explication. An example of such a flawed effort is a study done for New Orleans almost two years ago, about three years into the city’s experiment on widespread bail elimination or reduction. This came in the wake of several widely-reported crimes by individuals, some of whom had lengthy records and with violent crimes, that the city’s scoring system had concluded should be released with little to no bail required.

It noted that those released on recognizance spent significantly less time in jail, were re-arrested after release at nearly identical rates, and had their cases dismissed substantially more often than people who pay were required to pay bail. However, releasees’ recidivism was substantially higher (the report presented no tests to determine whether the difference was statistically significant) than for those who drew $7,500 or less in bail. Even more damaging to the case supposing that the no/low bail strategy worked effectively, failure to appear by released defendants occurred at almost twice the rate than those on bail.

The study itself is replete with caveats that dramatically diminish its ability to validate the strategy, such as with data collection and by admission of uncontrolled confounding factors such as releasee cases likely were weaker. And it turns to pure speculation in trying to explain away the much higher failure to appear rates was because a drug test requirement often was imposed, weakly arguing that despite the penalties attached to nonappearance defendants would prefer that lawbreaking over spending a little time and paying $10 or $25 for the test. More likely, they skipped court because they were out and had nothing at stake.

By contrast, the most rigorous study on the issue, issued around the same time, concluded that increased numbers of released defendants endangered public safety. Looking at one of the most stringent anti-bail jurisdictions then operating, Cook County, Illinois, researchers discovered the number of defendants who were charged with committing new crimes increased by 45 percent after the changes in release procedures. Perhaps more concerningly, the number of pretrial releasees who committed violent crimes increased by an estimated 33 percent – using the same pretrial assessment tool as does New Orleans.

Within the past few months, crime spikes (with data as yet incomplete) across the nation appear disproportionately higher and disproportionately so in bail reform jurisdictions, confirming past anecdotal evidence. The spotlight became really intense last month when a criminal with a long rap sheet and out on low bail for different accusations – one involving driving a vehicle – drove into a crowd.

While several different factors can affect significantly crime rates, reflexively anti-bail attitudes by policy-makers that result in policies promoting inappropriately low or nonexistent bail decisions certainly can contribute. It is perhaps no accident that from 2016, the year before bail changes occurred, through 2020 violent crime in new Orleans went from around 4,200 to 5,200 reported incidents and is headed higher still in 2021.

That signals this experiment should cease in New Orleans and any other Louisiana municipality that has a similar policy in its courts. Reality must take precedence over ideology on this issue, with quality of life if not lives themselves at stake. If necessary, the Legislature should create a bail schedule in the Criminal Code of Procedure applying to all courts reflecting this reality.