Where the COVID-19 Pandemic Might Finally Ignite Change in the Bail Bonds System

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.

In his first months as the New Orleans district attorney, Jason Williams has pushed a prosecution-reform agenda that not only limits who gets sent to prison on the front end, but also takes a backward look at who should be let out of prison. Nearly two dozen people convicted by non-unanimous juries have been granted new trials. Some people have been granted early release from prison after conviction under unduly harsh sentencing laws that no longer will be enforced. Williams' ultimate goal is to restore community trust so that necessary prosecutions have community support.

Releasing tens of thousands more misdemeanor defendants from jail without requiring cash bail had no measurable effect on crime rates in Texas' most populous county. To settle a lawsuit that claimed cash bail unconstitutionally discriminated against people on the basis of wealth, Harris County established a set of reforms abolishing cash bail in most misdemeanor cases. Court-appointed researchers monitoring compliance with the settlement found re-offending rates remained stable while racial disparities in who gets released improved. Not tested yet was compliance with court appointments.

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.

Across the United States, individuals and organizations are seeking to shift the criminal justice system through District Attorney elections. From online communities like colorofchange.org, which seeks to support grassroots election efforts, to individuals like Minnesota’s Mark Haase, who is running on a platform of diversity and inclusion, to the Texas Organizing Project that wants to empower Black and Latinx communities, each of these missions seeks to create more equity and transparency in the criminal justice system.

The Minnesota Freedom Fund spent its first four years as a modestly funded nonprofit that used donations to bail people out of jail, as a means of countering a cash bail system that critics see as unfair to people living in poverty and people of color. From 2016 to early 2020, it had a budget of $100,000 per year and bailed out 563 people. Protests against Minneapolis police misconduct produced a windfall of $30 million in donations. The fund has excess funds, beyond what's needed to bail out protesters, and faces some criticism that it has freed people accused of violence.

Nonprofit bail funds, which use donated money to pay the bail of low-income people held in jail on pending charges, have won the release of about 55 people in Detroit during the COVID-19 crisis. Beyond the immediate need to free more people from an environment that makes social distancing difficult, the bail funds are part of a larger movement challenging a system that disproportionately affects people of color. The combination of bail payments, bond reductions, and administrative releases have reduced Wayne County's jail population by almost half.

Algorithm-based tools are more frequently being used by courts to determine the risk of an alleged offender so judges can better determine whether the person should be detained or not before trial. Although this methodology has shown promise, there are serious limitations when there is not enough data or biased data. One non-profit is working to change this by reevaluating the limitations and advocating for the release of individuals being unjustly detained.

An amendment passed in Louisiana does away with non-unanimous jury verdicts that have helped solidify racial discrimination in the criminal justice system since they were implemented in response to Reconstruction. Data shows black defendants were more likely to be convicted in the non-unanimous system and the votes of black jurors more likely to be silenced. Advocates said the amendment is a huge game changer against mass incarceration in Louisiana and racial discrimination.

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.