New Orleans is in the crosshairs again of the Republican Pres. Donald Trump Administration with his executive order designed to determine which state and local jurisdictions use cashless bail regimes and then find means to withhold federal dollars from recalcitrant ones.
Orleans Parish will make that list because of an initiative begun several years ago. New Orleans eliminated bail for anything but more serious crimes, and Orleans Parish courts further circumscribed its use partly by choice and partly because of law suits. Worse, the “progressive” prosecutions sought by Democrat District Atty. Jason Williams have caused a voluntary disarming of sorts by his office on even major crimes asking for reduced bail amounts, if not outright dismissal of felony charges.
Naturally advocates of more lenient measures to ensure court appearances have gotten into an uproar over this, although whether the order will make a significant difference remains to be seen. Much will depend upon the degree to which jurisdictions actually practice cashless (or very reduced) bail policy as well as the potential leverage with what federal monies could be withheld. For example, New Orleans would have about 5 percent of its revenues at risk should Trump be able to cordon off federal funds (that $47 million does also include state money, so this would be even less), an amount if forgone which may or may not convince its elected officials to abandon the experiment.
Hopefully, it will prove persuasive to aberrant jurisdictions. Unfortunately, little quality research has been conducted on reduced bail policy, but it appears what little has been – the gold standard being one from Yolo County, California that created two sample panels, one subject to cashless bail, and then over time individually tracked recidivism outcomes – showed the system suffered unmistakable increases in recidivism.
Advocates point to several several flawed studies – largely useless because these relied upon aggregate-level crime data that cannot screen out a host of confounding variables that in reality likely shaped outcomes – as evidence that cashless bail doesn’t permit a crime wave. But in how they make their defense – saying there’s no conclusive evidence that cashless bail one way or the other affects the degree of criminal behavior – gives away how weak their position really is, especially when that evidence is built upon such shoddy studies.
The one legitimate critique of the Yolo County experiment is that no instrument alleging to gauge pretrial risk was employed. Typically, in cashless bail regimes some kind of instrument is used to figure out whether somebody is an appreciable nonappearance risk. However, the instruments themselves typically don’t have a high degree of validity or reliability, so that’s not that much different from having no instrument at all. In fact, as studies of Washington, DC’s cashless bail system have demonstrated, which has the best outcomes of any studied, that to get to this level requires enormous expense for a variety of ancillary activities to ensure appearance and reduce risk of criminal activity awaiting trial.
In any event, even some marginally-successful instrument could not have tamped down to acceptable levels the shocking figures from the experiment, which found a 169 percent jump in later crimes committed by those released on cashless bail (171 percent for violent crimes) as opposed to those having to fork over bail. Those released on zero bail reoffended at an average rate between 77 percent to 136 percent higher than arrestees who posted bail. They also committed 103 percent more new felonies and 130 percent more misdemeanors and were rearrested more than once over 18 months than those released on bail.
But Orleanians tired of this increased input to crime commission don’t have to pin all hopes on Trump doing something to end Orleans’ fantasy flight of cashless bail. The Louisiana Legislature could do it on its own with a change to the state’s Code of Criminal Procedure. And there have been a few attempts to try to circumscribe to some degree the ability to allow for cashless or inappropriately low bail amounts, which never have gotten close to becoming law (indeed, the most recent attempt resulted in a cursory study that cast doubt on implementation).
So, Trump’s order may be the most effective way to curtail the practice. Bail opponents can rant and rave about how innocent people with fewer means charged with serious crimes (which could mean paying a bondsman tens of thousands of dollars) get stuck for potentially years behind bars, but that problem is better addressed by education of judges/magistrates and district attorneys to be more discriminating in bail decisions instead of having get-out-of-jail free cards handed out backed by very uncertain methodology. Lives of innocent people victimized by miscreants who should be awaiting trial for something else depend upon this.
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