Bail reform could reduce disparities and save money

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Last month, state Sens. Rob McColley and Steve Huffman introduced a bill to reform the bail system in Ohio.

Ohio has already had some counties dip their toe in the bail reform water. Toledo’s Lucas County released twice as many defendants in 2015 in its first year using a new bail-setting system based on risk assessment.

Why do we have bail in the first place? According to the American Bar Association, “[bail] is not supposed to be used as punishment. The purpose of bail is simply to ensure that defendants will appear for trial and all pretrial hearings for which they must be present.”

Judges set bail based on a variety of factors, including risk the defendant will not show up for trial, the crime the defendant is accused of committing, how “dangerous” the defendant is considered to be, and how much of a risk the defendant poses to the community during the release period.

The problem with the current system is that there is strong evidence for bias in it. Last year, researchers at the University of California, San Diego, Harvard University, and the University of Chicago released a working paper at the National Bureau of Economic Research tackling this question. They found that about two-thirds of the average release rate disparity between white and Black defendants in New York City is due to racial discrimination.

These findings echo an earlier study by these researchers that found evidence of racial bias among bail judges in Miami and Philadelphia. The researchers found that this bias was driven by racially-biased prediction errors, using race as a proxy for more salient bail considerations. They also found bias more common among inexperienced and part-time judges.

Over the past decade or so, racial justice advocates have increasingly partnered with social conservatives on criminal justice reform, realizing that high levels of incarceration in the United States are both exacerbating racial disparities and costing taxpayers a lot of money. Bail reform is an important front in this alliance of strange bedfellows.

Other states have taken steps to change the way bail is done in their justice systems. Earlier this year, Illinois became the first state in the country to end mandatory cash bail. Other states have been slow on the uptake. Alaska and New York instituted bail reforms that have been rolled back or amended. Voters in California rejected an effort to reform bail in their state.

It can be easy to be swept away by single stories when it comes to bail reform. Inevitably, someone who is released under Illinois’s cash bail system will commit a crime and it will make headlines. Opponents of bail reform will happily jump on such a story as evidence that the reforms were a mistake.

This is why evaluation is so vitally important for a reform such as this. Researchers across the country will have their eyes on Illinois as it implements its bail reform this summer. Hopefully if Ohio passes bail reform, it, too will be following the impact of the program on disparities, public safety, and local finances. Let the data bear it out and policymakers judge the worthiness of tradeoffs: That is the stuff of good policymaking.

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Rob Moore
Rob Moore is the principal for Scioto Analysis, a public policy analysis firm based in Columbus. Moore has worked as an analyst in the public and nonprofit sectors and has analyzed diverse issue areas such as economic development, environment, education, and public health. He holds a Master of Public Policy from the University of California Berkeley’s Goldman School of Public Policy and a Bachelor of Arts in Philosophy from Denison University.