I came across a fascinating article this morning discussing a new concept in the criminal justice systems of some states: fixing (or not imposing at all) bail based on an algorithm that takes into account a defendant’s criminal history and the nature of the charge against him/her, among other factors. The article focuses on New Jersey’s use of this system.
I agree with one of the main points of the piece – the bail system is inherently unfair as wealthy defendants can secure their release on bail for almost any offense while indigent defendants do not have the same options even for far less serious offenses. Too often I see bail used as pre-trial punishment and that is not its purpose. The purpose of bail is to ensure that a defendant returns to court for future appearances.
In New York, courts are instructed under Criminal Procedure Law Section 510.30 to base decisions on bail on a number of factors, including the defendant’s character, reputation, habits, mental condition, the length of time he or she has resided in the community, employment and/or financial status, previous criminal history including any history of failing to appear for court, the weight of the evidence against him or her and the likelihood of conviction, and the severity of the sentence that may be imposed upon conviction.
Converting all of these factors into some kind of mathematical equation is an interesting concept, and I also found it interesting that New Jersey does not remove the human element in that the prosecution (and presumably the defense) can request a hearing to present reasons why the judge should override the determination of the algorithm. I would like to see New York explore this model as a way to level the playing field on bail.