‘Smarter Justice,’ Bail Reforms Make Headway Across U.S., Advocates Say

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Larry Krasner

Liberal support has helped to elect reform prosecutors like Philadelphia's newly elected DA Larry Krasner. Photo by Michael Thielen via Flickr

Policies of prosecutors elected on progressive platforms around the U.S. show promise to reduce the nation’s incarceration totals, two experts told a gathering of state attorneys general.

Jeremy Travis of the Laura and John Arnold Foundation called “remarkable” and “stunning” a set of new policies announced by newly installed Philadelphia District Attorney Larry Krasner.

Krasner told his staff last month to offer shorter prison sentences in plea deals, decline to file marijuana possession and many prostitution charges, and explain case-by-case why taxpayers should pay thousands of dollars per year to incarcerate people.

Travis suggested that Krasner’s practices reflected some of the findings of a Misdemeanor Justice Project at John Jay College of Criminal Justice, which he formerly headed. The project “seeks to understand the criminal justice response to lower-level offenses, from arrest to disposition.”

During a discussion of bail reform, Travis questioned why suspects charged with misdemeanors “should be put in jail [pretrial] if the typical sentence is non-custodial.”

Another panelist at the meeting, Maryland Attorney General Brian Frosh, described the new prosecution trend in some cities as “smarter justice.”

Frosh noted that since 2013, police in his state have been empowered to issue citations instead of arresting people for many lower-level offenses, a change he said has “reduced the workload for judges, police and prosecutors.”

Travis and Frosh spoke on a panel Friday in Washington, D.C., at a conference organized by D.C. Attorney General Karl Racine for the National Association of Attorneys General on “Reducing Violence: Innovations That Work.”

Their main subject was efforts around the nation to eliminate or reduce the use of cash bail and base pre-trial release decisions on a scientific assessment of the risk that defendants will commit more crimes or fail to make future court appearances if they are released.

Maryland’s Court of Appeals last year overhauled the state’s bail system, requiring judges to consider whether defendants are able to make a bail payment when they set conditions for release.

Under the change, about one-fifth of defendants are being held because they can’t or don’t pay bail, down from 40 percent in the months before the reforms were enacted, chief state district judge Judge John Morrissey said in January.

Attorney General Frosh said on Friday that the policy shift has resulted in a six percent decline in the state’s jail population. “Overall, more people are being released,” he said.

Frosh was a proponent of bail reform when he served as a state senator. He persuaded his fellow senators to approve a reform plan but it “crashed and burned” in the other legislative body, the House of Delegates, amid opposition from the bail bond industry.

After he was elected Attorney General, Frosh took another tack–asking the state judiciary to impose the same kinds of changes he had advocated as a legislator.

Preliminary results show that the changes have worked so far, with defendants returning to court and committing new offenses after release at about the same rate as they did under the previous system, Frosh said.

Attempts by bail bondsman in the legislature to reverse the judicially-imposed policies have failed so far.

Travis said New Jersey has had a similar experience under a statewide change that went into effect last year, in which judges use an algorithm devised by his foundation to help make pretrial release decisions.

The initial results are “promising,” he said. The number of people charged with minor crimes who were locked up until trial because they couldn’t post bail fell by 20 percent in the system’s first year, found a report issued last month.

Travis acknowledged criticism that the new system perpetuates racial disparities in pretrial releases. Some say that more minorities continue to be denied release because risk assessment tools consider defendants’ prior criminal records, where minorities are disproportionately represented.

“It’s a tough one,” he said of the issue, which is still being studied.

Overall, Travis contended, it is good that more attention is being paid to the “profound” power of judges to decide on the pretrial release issue, which each year affects the family and employment situations of millions.

Seema Gajwani of the D.C. Attorney General’s office, who advocated for bail reform previously at the Public Welfare Foundation, told the conference that 11 million people in the U.S. cycle in and out of jails each year and that even having to serve a few days in jail after arrest can be “incredibly destabilizing” for many defendants.

“The number one reason that people stay in jail is that they are poor,” she said.

Although most of the discussion focused on low-level offenders, Frosh contended that the cash bail system doesn’t make much sense for alleged serious offenders, either.

He noted that the process essentially allows judges to set a money amount that defendants can pay to win release and “continue to wreak havoc.” The current bail system used in most of the U.S. “doesn’t make sense at any level,” Frosh said.

Ted Gest is president of Criminal Justice Journalists and Washington bureau chief of The Crime Report. Readers’ comments are welcome.

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