Getting Bail Right

Releasing the wrong defendants can increase the risk that they won’t appear in court as directed—or commit additional crimes. But holding people unnecessarily can be costly. A series by The Sentinel studies the impact of bail decisions in two Pennsylvania countries.

Setting bail has consequences.

For a defendant, the consequence can be the difference between going home or sitting in jail.

Even a short stay in jail can cost an individual their job or even their home.

For society, releasing the wrong people can mean increasing the chance they will not appear as directed or possibly more victimization.

Holding people unnecessarily can be costly and, as recent studies have found, it can actually lead to an increase in recidivism and crime.

All of this is to say there is incentive for everyone to get these decisions right at the earliest possible point.

Whether a defendant sits in jail or remains free in Pennsylvania can be a matter of what zip code they were arrested in.

In 2016, the average defendant in Pennsylvania’s Cumberland County with monetary bail imposed was expected to pay $10,000 to remain out of jail, according to an analysis of court records conducted by The Sentinel.

However, the average defendant in neighboring Franklin County was expected to pay three times that.

Median bail for defendants charged with selling drugs in Franklin County was $100,000 last year, compared to only $25,000 in Cumberland County.

The variations don’t stop at the county level.

In Cumberland County in 2016, median bail amounts per judge ranged from $7,500 to more than $40,000.

Both Magisterial District Judges, Paul Fegley and Vivian Cohick, had set median bail amounts of $25,000.

“My first thought process is I did not bring you here,” Cohick said about dealing with the consequences of bail. “There has been a charge against you for a violation of the law.

“This is not just saying ‘you climbed up on the stool and I didn’t want you to climb up on the stool, so I’m going to paddle your butt.’”

“A person is being charged with a violation of the law,” she added. “That takes away some of the ‘you’re free to walk around and do what you want to do.’”

The Sentinel analysis reviewed all cases entering the magisterial district judge level in 2016 and sorted bails set at preliminary arraignment, which generally occurs around the time of arrest.

Cases where the defendant was issued a summons, usually lower level offenses, were not included in the analysis.

The Sentinel found no significant difference in the types of charges dealt with at arraignment that could explain the variation in bail amounts.

“How long are they going to sit in jail? That would be one of the things that might pop in my head,” she said. “But generally not so much, because I’m scheduling (a preliminary hearing) within three to 10 days. … That would bring them to their preliminary hearing quickly, so if they may not have bail, they may not have to sit long.”

Each year, thousands of bed days are lost at the Cumberland County Prison to defendants who are held on monetary bail before ultimately have their bail reduced and are released without financial conditions.

Most appear as directed. Many are later sentenced probation or other non-prison punishments.

A growing trend in criminal justice is the use of algorithms, known as risk assessments, to help quantify the decision-making process.

A recent study by the Laura and John Arnold Foundation found a county in Ohio was able to get better outcomes with less pretrial incarceration after implementing a risk assessment tool.

“Ultimately we want to just know what the person’s true risk level is,” University of Virginia Associate Professor of Public Policy and Economics Jennifer Doleac said. “Unfortunately, that is impossible.”

Risk assessments to do not eliminate all risk or provide absolute certainty of the outcome of individual cases.

In the case of the Ohio Risk Assessment, roughly five percent of low-risk defendants will likely fail to appear for court as directed if released.

Doleac also said risk assessments do not necessarily eliminate racial or other biases in the system.

“If you are deciding whether or not someone is a risk to fail to appear … and you know the person is unemployed and has no family, we know those things seem like they would be very plausibly causal factors to show back up in court,” Doleac said. “It’s just easier for you to take off if you don’t have any ties.

“But, we also know that black men are more likely to be unemployed, marriage rates are lower and those types of factors are going to be correlated with race.

“You have to draw a line somewhere.”

This is a condensed version of a series published by The Sentinel. Read the full series here. Joshua Vaughn is a 2017 John Jay/Measuresfor Justice Fellow. He welcomes comments from readers.