Why is Bail Reform Being Considered in Kansas After All Its Failures?

A movement to do away with bail bonds is gaining strength in a number of jurisdictions around the country. The original theory behind this bail reform was that it would make the streets of America safer while making the legal system fairer to the poor, people of color, and many nonviolent offenders. The new system uses computer programs to determine which inmates should and should not be released while awaiting trial. The stark fact is that, in the places where it’s been instituted, the results have been anything but positive. Violent offenders are still being released, and algorithms are not making the system more equitable for society’s less fortunate members. Still, similar systems are being promoted in new jurisdictions around the country (including Kansas), with lawmakers largely ignoring the lack of success it’s already had. To understand why the movement is still underway, we have to explore who really benefits from bail reform.

First, the Facts About Bail Reform

Jurisdictions that have already adopted bail reform are not getting the promised results. Let’s take these one at a time:

Crime rates will drop

– Crime rates have remained the same or increased in many areas after bail reform.
• Jail populations will drop – Average daily jail populations in many jurisdictions have stayed the same, while some have increased.
• Alleged offenders will appear for trial without being required to post bond – Many offenders deemed by the computers to be low flight risks are failing to appear for trial.
• There will be less discrimination against the poor and people of color – No evidence has been shown that the new system is more fair to these demographics. Some experts even claim that the computer data being used for inmate evaluation is biased against these groups. In the words of Senior Criminal Justice Researcher John Raphling of Human Rights Watch, “Garbage in, garbage out.”
• Fewer offenders will commit new crimes after being released – This is the most frightening part of the scenario as it’s playing out in the real world: public safety has clearly been compromised by bond reform.
• Only nonviolent offenders will be released – It just isn’t working out this way. Under the new system, many states are routinely releasing inmates accused of the following offenses:
  Criminally negligent homicide
  Second degree manslaughter
  Aggravated vehicular assault
  Some sex offenses
  Making terrorist threats

Follow the Politics, Follow the Money

Bail reform is one of those “darling” projects that gives politicians a nice, public-sympathy platform without touching political hot buttons. In other words, it’s a safe cause to adopt, and one that makes politicians sound as if they care deeply about the less fortunate in society. Whether it’s actually good for the racially and financially underprivileged is not the point; it’s about being able to take a public stance in favor of the poor without actually doing much for them. The fact is that this is a complicated issue, and one that the general public doesn’t take the time to understand, so they blindly follow along. But many legal professionals who have born witness to the consequences of bail reform are now considering rolling it back.

Lobbyists Will Be Lobbyists

Lobbyists have more power over politicians than many people realize, and their motives range from the promotion of special interests to outright greed on behalf of their employers. They fly into states to influence politicians with agendas that promise popularity and positive PR spins, then fly back to their home states, leaving local citizens to deal with the real world consequences of the legislation they promote. It isn’t a heroic undertaking to save the locals. In some cases, it’s just business. In others, lobbyists work for well-intended social justice organizations who are grasping at the first bail alternative to come along without duly evaluating its effectiveness (which has been dismal).

Throw in a Little Corruption

Unbelievably, a lot of the early horsepower behind the bail reform movement came from a scandal-riddled organization called the Arnold Foundation. The non-profit was created by billionaire John Arnold, a former natural gas trader who was instrumental in the dubious accounting practices that brought down Enron in 2001. The foundation funded the creation of the first computer-based inmate assessment program, then set out to sell it to lawmakers around the country, finding early success in New York, New Jersey, and California.

During its existence, the Arnold Foundation channeled millions of dollars in kickbacks to Board Member Denis Calabrese, a convicted felon. The organization recently became a for-profit LLC and walked away entirely from the bail reform banner it had created. In spite of this questionable genesis of the movement, its momentum is still chugging along at full power, promoting bail reform in other jurisdictions.

Breaking Through the Smokescreen

Bail bond agents have frequently been villainized by pro-reform spokespeople, characterized as predatorial businessmen who profit from the misfortunes of people who can’t afford bail. This is the opposite of what bondsmen do (in fact, making it possible for defendants to pay bond—at all—in many cases), but the story seems to “sell newspapers.”

The current bail system isn’t perfect. Not every inmate who should get out does get out. Not every inmate who should be kept in jail is held. But the bail bond system places these decisions in the hands of human judges rather than computers, and if the early results of bail reform are any indication, judges do a better job than computer algorithms at setting the right inmates free. And the financial penalty of imposing bond is the most effective way we have to make sure defendants stay out of trouble and show up for trial.

Far from improving the legal system, the new computer assessment alternative is making things worse in jurisdictions that have adopted it. If this is our only alternative, we clearly need more alternatives.

Call your Legislators

Bail reform has already been adopted in Missouri, and many of the judges there are ignoring the advice of computers and continuing to impose bail at previously established levels. Rollbacks of the law are under discussion. In Kansas, only Johnson County is currently using the new system, but discussions are underway to adopt it statewide. If you think it’s important to keep Kansas streets safe, tell your county and state legislators to vote against bail reform. We can find a better answer than this.