Eliminating Bail for Nonviolent Crimes

The state of Mississippi has taken drastic steps in reforming their criminal justice system, pointing to a nationwide cultural shift as a driving force. State legislation, such as expanding parole eligibility, eliminating mandatory minimum sentences, and barring licensing boards from discriminating against individuals who used to be incarcerated are just a handful of policies the state has championed. The reform has led to a prison population decrease of 11% and state savings of $46 million

As New Jersey continues to reform its cash bail system, other states in the region look to it as an example. The state developed an algorithm called the Public Safety Assessment that considers an individual’s likeliness to appear for their court date and whether they pose a risk of committing another crime and presents these findings and corresponding recommendations to a judge. Since the reforms have been in place, the state has seen a 20% decrease in the pre-trial jail population and an overall decrease in crime.

Jails are overcrowded with inmates awaiting their trial and who didn't have the money to make bail. Across the country states are trying to implement new policies to deny high-risk felons bail, while conducting risk assessments to see if inmates would be a safety concern if they were released until their trial. Many plans have been developed but the big bail business remains a barrier.

Nearly three decades after Washington voters made their state the first to enact a three-strikes law, imposing life imprisonment for repeated, serious offenses, some prosecutors have found ways to avoid the law's effects that are seen as unduly harsh or racially biased. Some have interpreted a law authorizing resentencing to apply to three-strikes cases. Others have pushed the governor to grant clemency more often. This new willingness to question the law's effects is not universal among prosecutors, and the state Supreme Court soon will weigh in on the issue.

The spread of COVID-19 in jails prompted many releases from custody and a surge in donations to bail funds that pay for people's release. But those fixes have done little to address the underlying challenges of detaining millions of people before trial, either because they cannot afford cash bail or because risk-assessment tools deem them a threat to public safety or unlikely to return to court. In two South Florida jails, the struggles over containing the virus, providing due process to criminal defendants, and ensuring public safety have brought the debate into sharper focus.

Manhattan Mental Health Court was created in 2011 to divert felony criminal cases to treatment, and away from prison, for people in need of mental health treatment. But few people with serious mental illness ever benefit from it. Too few defense lawyers know to request the intervention or do it correctly. Prosecutors act as gatekeepers in deciding who gets the help, and many do not see its value. And, once cases are admitted to the court, they can sometimes take years to be resolved. Covid restrictions on the courts have only aggravated these problems.

Drug courts can help some people with serious drug problems who face serious criminal charges, if such court programs are run carefully, based on evidence-based approaches. But, too often, such courts – which push criminal defendants into treatment as an alternative to incarceration – can do more harm than good. The proof of drug courts' effectiveness is mixed, and fairly thin. Thousands of such courts exist, based on widespread political support for an approach seen as less punitive. But many critics say the courts' track record overall is weak and their approach can be just another form of punishment.

One of the most powerful tools used to reform policing practices, widely credited with restoring public faith in such troubled departments as the Los Angeles Police Department, is called a consent decree. The U.S. Justice Department sues cities where police abuses are seen as rampant. Then, under the watchful eye of a judge and independent monitor, the department agrees to a package of reforms. Under the Trump Justice Department, though, the tool has gone unused in new cases. In existing cases, the government has become passive, allowing cities to flout their agreements without consequence.

A nonprofit consulting firm, Prosecutor Impact, advances the cause of reducing incarceration and related reforms by helping reform-minded elected district attorneys confront one of the greatest obstacles to change: their own staff's opposition. In Columbus, a two-week curriculum educated front-line prosecutors about local services that can serve as problem-solving alternatives to punishment. It also taught them about poverty's challenges and engaged them in dialogue with prisoners, to make them more open to alternative approaches, which a local defense lawyer says was successful.

Since 2015, Project Reset has diverted potential criminal cases to programs that change behaviors without imposing punishment or staining people's records with criminal convictions. Art classes, behavioral therapy, and restorative dialogue have made 16- and 17-year-olds in the program significantly less likely to commit new offenses, while 98% of those admitted to the program have completed it. Offered in Manhattan, Brooklyn, and Bronx, the program helped the Manhattan district attorney nearly cut in half the number of prosecutions of low-level misdemeanors and violations.