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Bail Getting A Makeover

The process of setting bail is a decidedly inconsistent one across the nation. Even within a single courtroom, it can appear as though bail is set with no rhyme or reason. The Laura and John Arnold Foundation has developed a new method for setting bail that would add some predictability to the process. The Foundation has developed an algorithm for setting bail. The algorithm has been tested in a few jurisdictions over the past two years and is now set to be used in an additional 21 jurisdictions, including New Jersey, Arizona and Chicago. While the algorithm answers some of the concerns over how bail is used in this country, it is still not clear that it will not unduly penalize low and middle income families.

The primary concern of many regarding bail is that it basically insures that poorer defendants will remain in jail until their trials are complete. A person can spend a year in jail, only to be found innocent of any wrongdoing. A year spent in jail often means unemployment, homelessness and untold damage to the families of people who did nothing but get arrested while not being rich enough to afford bail. Bail is often set with no actual regard for a person's flight risk or risk of committing a violent offense. 

The new algorithm assesses a defendant based on 10 factors. It is an impersonal assessment, relying exclusively on objective factors such as criminal record and previous failures to appear in court. One of the reported benefits is that it is more efficient, allowing for bail to be set without interviewing the defendant or basically guessing what his intentions might be. There is some concern that it ignores the defendant's employment and ties to the community, factors which have traditionally been considered in setting bail.

The system of setting bail is broken. That much is clear to anyone working in the criminal justice system. Whether an algorithm will solve the problem, or at least improve the situation, remains to be seen.

Source: The New York Times, "Judges Replacing Conjecture With Formula for Bail," by Shaila Dewan, 26 June 2015 

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