Battling Bail

• Author: Jason Tashea
• Pages: 18-19

National

Pulse

frivolous, they also c an award attor-

ney fees to the government agency.

Petersen still doesn’t like it, but she

says the original “re ally had the

potential to do some serious da mage

to our right of access i n Florida.”

THE COST OF REQUESTS

It took a similar process t o modify

the Washington law. Nixon of the

Washington Coalition for Open

Government says there had been

several years of att empts to reform

the Public Records Act to dea l with

the growth in vex atious requests.

But in the midst of the legislative

session, he says, they had always

turned into “just a lot of shouting.”

The legislature create d a study

group, which took about a year to

debate and draft t wo bills. As passed,

HB 1595, sponsored by Nealey, says a

request for all or substantia lly all of

an agency’s records is not val id; per-

mits agencies to tur n down excessive,

automatically generated r equests;

and allows charges for elec tronic

copies, giving agencies a choice

between calcu lating their own fees

or using a suggested schedule of fees.

A companion bill by Democrat

Joan McBride of Kirkland addre sses

the issues of clarifi cations, request

logs and training.

Nixon says that negotiations

between open government advocat es

and municipalities were ex tensive

and sometimes contentious. He

strongly opposed the idea of letting

municipalities charge for st a time,

although according to t he Washing-

ton auditor’s report, this w as 98 per-

cent of the cost of records request s.

In this, Nixon says his per spective

as a city council member helped him

bridge the gap. Ultimately, the study

group compromised by chargi ng

$1.25 for electronic copies, think ing

it might discourage persist ent large-

scale records reques ts. If, for exam-

ple, the requester asks for 10,000

fi les, it would cost $125.

“If it’s 100 bucks or 200 bucks

or something, a requester thin ks

twice about that ,” Nixon says. The

purpose of the bill, he adds, “ was

to come up with some way to make

these persistent vexatious re questers

think at least a lit tle bit about the

cost of what they were aski ng for.” Q

Battling Bail

The bail industry is fi ghting back against

reforms that threaten its livelihood

By Jason Tashea

A little more than a

year ago, New Jersey

all but eliminated

cash bail for cri minal

defendants, except

for those charged

with certa in violent o enses.

Since the reforms took e ect Jan.

1, 2017, the county jail population is

down 16 percent, says then-attor ney

general Christopher Porri no, who left

o ce on Jan. 16 when the new gover-

nor was sworn in. And prelim inary

numbers show a 5 percent decrease

in violent crime over the year.

The reforms, Porrino says, add ress

two problems: First, that v iolent

repeat o enders were often able to

buy their way out of jail; and second,

that low-level, nonviolent o enders

often languished i n jail because they

didn’t have the means to post bail .

Now, instead of needing money

to attain fr eedom, which dispro-

portionately punished poor a nd

minority people, defendants a re

held or released because of their

risk to society. “Thi s is one of the

best examples of where government

can work,” Porrino says.

Determining who is held in jai l

and released is done, in par t, through

an algorithm ca lled a risk assess-

ment, a program being chal lenged

by the bail industry, whose fi nancial

future is increa singly threatened.

Although reformers say risk a ssess-

ments decrease crime rat es, reduce

jail populations and increa se govern-

ment savings, the bail bond indus-

try sees a perm issive tool that is bad

for public safety and an exis tential

threat. (See “Calculat ing Crime,”

ABA Journal, Ma rch 2017, page 54.)

“Pretrial a ssessment represents

a quantum step forwa rd over the

current subjective—and too of ten

biased—decision-making,” says

Cherise Fanno Burdeen, CEO of

the Pretrial Justic e Institute, a policy

group in Rockvi lle, Maryland, and

co-chair of t he ABA Pretrial Justice

Committee.

In the most basic sense, a risk

assessment takes a ser ies of factors

about an individual fa cing detention

and provides an output, such as t he

likeliness that the pers on will show

up to court or commit another cr ime.

While there are numerous risk

assessment methods, one of the fas t-

est proliferating tools is the L aura

and John Arnold Foundation’s Public

Safety Asse ssment, or PSA, which

has been piloted in about 40 jur isdic-

tions, including New Jersey.

Je C layton, executive director

of the American Bai l Coalition, says

risk assessments or iginally “were one

more tool in the toolbox” that a judge

could use to set bail. A lthough he has

concerns regardi ng the underlying

research and data t hat led to the

creation of the PSA, he now describe s

the algorithm as a mecha nism “to

completely get rid of bail.”

A NATION LOCKED UP

Every year about 12 mill ion

Americans a re booked into local

jails. The Pretria l Justice Institute

says about three out of fi ve inmates

are awaiting tria l, costing taxpayers

about $14 billion per year.

For judges, as a paper from the

Arnold Foundation notes, the “deci-

sion—whether to release or detain a

defendant—is far too importa nt to

be left to chance.” The foundation

determined a data-in formed risk

assessment was the way to close t his

subjectivity gap.

Tools such as risk assessments are

seen as a complement to implement-

ing bail reform. In their absenc e,

limiting cash bai l can have mixed

results. In Mar yland, for example, a

new judicial rule stat es that money

The Docket

18 || ABA JOURNAL MARCH 2018