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Trying to find a better way to set bail in criminal cases


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If you’ve ever been arrested or even seen a television crime drama, you know what bail is. That being said, the purpose of bail is often misunderstood. Many people assume that posting bail is like paying a fine in order to get out of jail before your trial – which can be months away.

When used correctly, bail is meant to provide an incentive for the defendant to appear in court when legal proceedings resume. When a person posts bail, the court holds this money with the assurance that it will be returned if and when the charges are resolved. Unfortunately, like many aspects of our criminal justice system, bail guidelines and processes are in serious need of reform.

Judges typically have considerable discretion when it comes to setting bail amounts. But these decisions are often subjective and/or based on a series of guidelines that are not reliable predictors of whether a defendant is a “flight risk.” This subjectivity and unscientific methodology has led to serious problems in many parts of the country, including:

  • Drug offenders and other low-risk defendants remaining locked up while awaiting trial because they can’t afford bail
  • Pre-trial incarceration that is sometimes longer than a defendant would serve if convicted
  • Systemic bias against poor and minority defendants
  • Minors being held (pre-trial) in notoriously dangerous prisons with adult offenders
  • Job loss and other serious consequences for low-level offenders who remain locked up because they cannot afford bail

A recent article in the New York Times discusses the need for more uniform standards for determining bail amounts. It also discusses the development of an algorithm that promises to more accurately assess the risks posed by a defendant (which would, in turn, help judges set appropriate bail amounts. According to those who developed the algorithm, it can accurately predict a defendant’s risk of failing to appear in court and of committing another crime while out on bail. It is already being piloted in some major cities around the nation.

Hopefully, if the “Public Safety Assessment” proves useful in other jurisdictions, it will soon be adopted here in Colorado.

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