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California’s New Cashless Bail System More Likely to Increase Number of Detainees

by Kevin Bliss

California became the first state to completely do away with cash bail, making international headlines. The new system uses algorithms to weigh factors to determine a person’s risk assessment with preventive detention for more serious crimes. Critics are concerned that the algorithms are based on data from existing similar profiles, furthering the racial bias that already exists in our criminal justice system.

According to Sam Levine, reporter for The Guardian, there was bipartisan agreement that the cash bail system was “a fundamentally flawed model that has fueled mass incarceration.” It resulted in two classes of people with the lower class unable to afford bail disrupting their lives, homes, and families. These same people often plead out in cases with consideration only for their release, not their guilt.

However, parties do not agree on the best method of replacing the cash bail system. The current choice many believe gives the courts too much authority to jail an accused until trial. Deputy Public Defender Chesa Boudin of San Francisco said, “This makes it your burden from jail to prove that you’re entitled to freedom, a fundamental constitutional right.”

Ivette Alé, an organizer for Californians United for a Responsible Budget (“CURB”) said, “We are replacing money bail with an even more harmful system of profiling.” Levine’s article goes on to say that this system facilitates the ability of judges and prosecutors to keep people in jail, and that the technology used could actually exacerbate racial bias in the pre-trial detention determination process. The “high risk” category would probably be those who live in over-policed communities of color. Especially if they have already had a run-in with the law. Moreover, the new system would detain “low risk” individuals due to no more than the allegations against them.

Critics fear this will increase the number of pre-trial detainees. George Mason University Professor Megan T. Stevenson studied risk assessment use in Kentucky after the state adopted use of the tools in 2011. She said disparities in pre-trial detention worsened over time. White detainee releases increased while those for black suspects did not.

The increased potential for discriminatory practices encouraged activist groups that originally supported the bill to urge Governor Jerry Brown not to sign it. John Raphling of the Human Rights Watch said any new system should offer a meaningful approach to due process.

Senator Bob Hertzberg, a supporter of the new law, said there were balances created in the legislation, including reviews to ensure no bias in the algorithms. And he said the risk assessment tools were not the only factor in determining detention. The elimination of a cash bail system was just a first step in the goal of reform. Adjustments would be made later. 


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