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Excerpted From: Candace White, Bias and Guilt Before Innocence: How the American Civil Liberties Union Seeks to Reform a System That Penalizes Indigent Defendants, 83 Albany Law Review 657 (2019-2020) (Student Note) (302 Footnotes) (Full Document)

CandaceWhiteFor decades, the United States has debated the concept of a money-bail system, which has been documented to disenfranchise individuals of lower socioeconomic statuses. Because the accused's financial status is often not assessed during bail and arraignment hearings, judges often set bail in excess of the defendant's financial means. As a result, individuals who have not been convicted comprise sixty percent of jail populations, and in cases where bail is set moderately low, “at $500 or less, as it is in one-third of nonfelony cases--only 15 percent of defendants are able to come up with the money to avoid jail.”

In an attempt to rectify discriminatory practices, the United States, under the Obama administration, sought to provide guidance on criminal justice fines and fees, however, these instructions were repealed under the Trump administration. At the local level, state lawmakers vastly differ in their perceptions of how to implement successful, nondiscriminatory bail procedures while also upholding the need for community safety, especially in cases where the defendant has been accused of committing a violent crime. Several states, including New Jersey, Colorado, Kentucky, Alaska, and New York, have implemented some level of bail reform, with New Jersey and Alaska having entirely repealed their cash bail systems. In lieu of cash bail systems, proponents of reform are turning to risk assessment tools, which rely upon algorithms to determine the predicate assessment of whether a defendant will return to court while also assessing the threat level that allowing high-risk defendants to be remanded poses to the community-at-large. Such tools have flourished despite criticisms that the algorithms focus on racially motivated and biased factors, including the zip code in which the accused resides and the socioeconomic status of the offender, thus, rebranding and repackaging age-old discriminatory criminal justice tactics.

On December 11, 2017, the American Civil Liberties Union (ACLU) announced through its Campaign for Smart Justice that it would begin advocating for states and the federal government to “end money bail and eliminate wealth-based pretrial detention.” The campaign's ultimate goal is to “combat racial disparities in the criminal justice system by challenging the injustices that have helped make America the world's largest incarcerator.” In its press release detailing the initiative, the ACLU asserted, “The money bail system was originally designed to ensure that people returned to court as their case progressed. It has since transformed into a system that targets those who cannot pay bail ....” Because the current system of bail is predicated upon discriminatory policies and practices, hundreds of thousands of indigent arrestees remain incarcerated each day; a systematic injustice that the ACLU seeks to reform through impact litigation and lobbying efforts advocating for the elimination of the cash-bail system.

Part I of this Note assesses the concept of bail and discrimination.

Part II evaluates modern bail practices and reform initiatives at the federal and state levels.

Part III discusses the influence of the ACLU's position on state bail reforms initiatives and discusses the dichotomy between community needs recognized by state-level chapters of the organization and the varying goals of the national level chapter.

This Note argues that to implement meaningful reform, states must work alongside groups such as the ACLU to either structure reform efforts to the individual needs of communities or eliminate bail systems, while simultaneously working to dismantle systemic issues of racism inherent in the American criminal justice system. While acknowledging the rise of empirical data analysis tools in jurisdictions implementing reform, this Note urges that risk assessment tools must be implemented only as a last resort and with ample safeguards to dismantle discriminatory and punitive pretrial punishments.

[. . .]

By acknowledging the differing political perceptions that individual states have from that of the nation, the ACLU and similar social justice organizations have been able to tailor advocacy efforts to the specific needs of communities and localities. This has proven to be an effective method at compelling reform as these organizations have been able to induce discussions and reform efforts through impact litigation and lobbying strategies. While states such as California and Texas still have a long way to go in developing and implementing just and unbiased systems of bail, the idea of reform in the United States is no longer novel.

With states across the country working to implement varying means of bail reform, it is critical to assess and eliminate implicit bias at every stage. For advocacy efforts to effectively target and eliminate pretrial bias and discrimination, legislators, judges, and activists must concede that pretrial detention based on community safety encumbers the presumption of innocence by encouraging preventative detention. Additionally, until states acknowledge that the current systems of bail disenfranchise and discriminate against people of color, the country cannot move towards meaningful reform. Such an acknowledgment requires consideration of the fact that institutionalized racism is the backbone of the United States' criminal justice system, and to eliminate pretrial bias, the entire criminal justice system must be overhauled.

Because the existing research and literature regarding risk assessment tools demonstrate that the algorithms predominantly used across the nation fail to eliminate bias in the pretrial stage, reform efforts must evolve to reflect the growing concern of machine bias. Simply put, reform efforts implementing risk assessments are inadequate; to determine whether an individual is eligible for bail predicated on factors such as the zip code of their residence or the incarceration status of their parents repackages bail to place the bias on the machine instead of the judge. Consequently, to create meaningful reform, states must work alongside civil rights groups, such as the ACLU, to ensure that new policies and reform efforts do not merely rebrand age-old discriminatory bail tactics. If states do not heed the advice of civil rights groups, costly litigation will ensue and the sentiment of creating effective bail reform will be in vain.

J.D. Candidate, Albany Law School, 2020; B.S., Stetson University, 2017.

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