Can we shift how judges set bail?

Background

Across the United States, 70% of those under arrest are awaiting trial. Many of these people are in jail simply because they could not afford to post bail. In New York State alone, over 16,000 people are incarcerated due to their inability to post bail, costing taxpayers over $350 million a year. The average bail for a misdemeanor in New York City is $1,000, yet, we have seen that most people don’t have enough saved to cover even a $400 unexpected expense.

To understand this problem, we partnered with Vera Institute of Justice. Vera focuses on building and improving justice systems that ensure fairness, promote safety, and strengthen communities.

Key Insights

We began by first sitting in on arraignment hearings in New York City and interviewing public defenders, judges, and policy experts. Our experience led to the following high-level insights:

• Judges do not focus on the defendant’s ability to pay when they set bail. At arraignment hearings, judges can decide to proceed with a defendant in one of three ways. If they believe the defendant will show up for their court date, they can release a defendant on their “own recognizance.” They can also choose to detain the defendant without bail, or they can set a bail amount. In deciding how to proceed, a judge will take into account several factors, but they do not formally consider a defendant’s financial capability.

• Judges usually only set a “cash bail.” The full amount of a cash bail must be paid to the court, which is then returned to the defendant

• if they show up to court. However, most people are unable to cover the full amount, and, instead, families usually have to go to a bail bondsman. Typically, bail bondsmen charge families 10% of the total bail amount, which is never returned to the defendant. Judges are allowed to set other types of bail. A partially secured bail, for example, allows the defendant to pay the court only a certain percentage of

• the total bail. This type of bail allows more families to avoid using bail bondsman, but most judges do not utilize this option.

• There is limited time. The courtrooms are usually very busy, allowing for just a few minutes per defendant. This environment creates feelings of scarcity and does not promote a closer consideration of personal finances.

Experiment

With these insights in mind, we decided to build a financial capability calculator that quickly records a defendant’s income and expenses before their arraignment hearing. The results of the calculator are then presented to a judge, including a recommended bail amount and bail form. Public defenders could request a financial assessment for their client. The financial assessment takes on average five-to-seven minutes and is conducted by a trained professional who then presents recommendations to the Judge.

The financial assessments were only conducted on Tuesdays and Thursdays, and no financial assessments were conducted on Mondays, Wednesdays, or Fridays. These different days allowed for comparisons, which helped us to assess the impact of our recommendations quasi-experimentally. In each case, the judge’s final bail decision was recorded, and we were able to measure how judges set bail with and without a financial assessment recommendation.

Results

In April 2019, New York State passed legislation to reform bail. The bill eliminated money bail and mandated release for 90% of all arrests statewide. In the past, the median bail amount for a misdemeanor in New York City was $1,000. Now, judges cannot set bail for misdemeanor offenses, except in specific sex-related or domestic violence charges. The changes in policy obviated the need for the financial capability calculator and the project was discontinued.

Additionally, if bail is set, judges must now consider a person’s ability to pay and offer bail in an unsecured or partially secured form. Thus, the law accomplished much of what our bail calculator was hoping to accomplish.

However, in the short time that the bail calculator was in place, Vera assessed the ability to pay for 190 defendants. Of those, roughly 60% had no ability to pay anything. For the 40% that could afford to pay some bail, the calculator recommended a median bail of $1,213 with a 10% deposit (effectively just $121).

When bail was set, about two-thirds of people made bail. However, the form of bail set had a significant impact on the likelihood of making bail. People given the option paying bail with a partially secured bond – 82% made bail. However, only 62% of people who had the option of paying cash or insurance co-bail bond made bail.