Bail reform should be the solution for Oklahoma’s overcrowded jails

Leslie Briggs was an OK Policy summer intern. She is pursuing a Juris Doctor degree at the University of Tulsa College of Law.

Oklahoma voters know that the time is right for criminal justice reform for our state, and they showed it by passing State Questions 780 and 781 by wide margins last November. Not all stakeholders were on board: Just before the questions took effect on July 1, some Sheriffs and District Attorneys raised concerns about rising county jail populations, since many low-level drug and property offenders are no longer eligible for terms in state prisons. While overcrowded jails are a real problem, the state can do much more to solve it by reforming bail practices than by undoing recent reforms.

Like state prison populations, both urban and rural local jail populations have dramatically increased to a point that is breaking our ability to operate them safely. Oklahoma County jail, for example, was originally designed to hold 1,200 inmates; its average daily population has reached twice that size in recent years. But the vast majority of jail inmates in Oklahoma County – about 80 percent – are being held pretrial, which means they haven’t yet been convicted of a crime but can’t afford bail to get out of jail before their case is resolved. Nationwide, about 9 in 10 pretrial inmates have a bail amount set but are unable to meet the financial burden to be released from jail.

Jurisdictions across the country have shown that we can reduce that number by implementing an evidence-based, pretrial release program that relies on individual risk assessments rather than money bail. Doing so at the state level would save counties huge amounts of money without risking public safety.

Pretrial detention doesn’t just contribute to jail overcrowding. It also creates big problems for defendants, their families, and taxpayers. It costs over $51 a day to house an inmate in jail. In many counties, this cost falls on the inmates themselves through jail fees — and if they can’t afford bail they aren’t likely to be able to pay off the fee debt, either. When those fees can’t be collected, the costs must be covered by city and county taxpayers.  An extended pretrial stay in jail may also result in a defendant losing their job, losing their children to state custody, and being evicted from their home. That’s part of why defendants who are detained before trial are much more likely to plead guilty and take a plea bargain — whether or not they are actually guilty — to obtain faster release from incarceration.

We have better options to make this system more just and less expensive. Instead of using money to secure bail, courts should use the information available to them to determine who is at most risk to reoffend or fail to appear for their court date. Strong, empirically-based pretrial risk assessments have been developed and put into use federally and in several states. The Arnold Foundation’s Public Safety Assessment (PSA) is one risk assessment tool that estimates the likelihood that the defendant will commit a new crime, commit a new violent crime, or fail to appear for their court date. These policies save taxpayer dollars, improve public safety, and reduce unjust outcomes for low-income defendants.

For example, Allegheny County (PA) Jail saw a a 30 percent decrease in the number of defendants sent to jail after preliminary arraignment once they integrated a risk assessment tool into their bail setting process, among other reforms. Washington D.C. has gone even further by eliminating money bail in favor of pretrial release that may come with conditions like GPS monitoring, regular drug testing, and checking in at court by phone or in person. Over the last five years, 90 percent of those released under D.C’s system have remained arrest free before their cases were resolved.

[pullquote]“This creates a paradox for those sitting in jail: bond out and be required to hire an attorney who charges $350 per hour, or stay in jail and risk losing your job, home, and children, only to then feel pressured to take a plea deal for less time in incarceration.”[/pullquote]

In the absence of these reforms, private bail bondsmen often play the role of facilitating release by paying off bail and supervising defendants in exchange for high interest charges on the bail amount. Proponents of the current money bail system contend that bail bondsmen save taxpayers money and do the job of making risk assessments in the interest of public safety. But bail bondsmen do not have a standardized, evidence-based system for determining who is a potential threat to public safety, and they do not consider the type of crime committed in their assessment of who they will bond out. They also don’t face a penalty if the defendant they bond out commits a new crime after release. These incentives mean that bondsmen are primarily concerned whether defendants are a flight risk and whether they will be able to pay off the interest, not whether they are likely to commit a new crime.

The second major issue is access to justice for low income defendants. Only those who cannot afford to hire an attorney are eligible for representation by a Public Defender. Under Oklahoma law, when a defendant posts bail it creates a “rebuttable presumption” that the defendant is not indigent, making it more difficult for them to be represented by a Public Defender. This creates a paradox for those sitting in jail: bond out and be required to hire an attorney who charges $350 per hour, or stay in jail and risk losing your job, home, and children, only to then feel pressured to take a plea deal for less time in incarceration.

Just this month, 67 former District Attorneys and Department of Justice officials from across the country – groups that are rarely outspoken proponents of reform – filed a brief detailing how money bail harms the criminal justice system and urging wider adoption of individual assessment of defendants. In Congress, Sen. Rand Paul (R-KY) and Sen. Kamala Harris (D-CA) showed the bipartisan support for bail reform with a bill that would provide grants to local justice systems that implement risk assessments. With criminal justice reform remaining at the center of attention in Oklahoma, the time is right for bail reform. We should not let State Questions 780 and 781 stand alone. We should build upon them with evidenced-based reforms.