BY CASEY TOTH
He had been accused of misusing a relative’s credit card, spending a few dollars on a minor purchase.
She had broken her agreement with a judge to avoid prosecution — a way to keep her record clean of a small larceny charge.
Both of them spent two weeks in jail awaiting trial.
For Kevin Tully, Mecklenburg County’s chief public defender, they are both examples of how some defendants — usually poor, often charged with minor offenses — have been locked up in Charlotte because they were unable to post bail.
Under the county’s new bail policy, though, Tully hopes that might be changing. Since it went into place earlier this month, judges must explicitly decide whether they want to keep someone locked up before their trial — and cash bail can only be used if they do.
It’s a policy, criminal justice officials say, that aligns the county with a longstanding but unenforced state law: Any defendants charged with non-capital offenses must be released while they await trial — unless there’s a reasonable chance they might flee, destroy evidence, or put someone in danger.
“This tries to make sure that we as a county are aligning ourselves with what the statute says,” Khalif Rhodes, the county’s chief magistrate, said.
In doing so, it also makes Mecklenburg County one of many jurisdictions across the nation taking steps to reform its criminal justice system — one that critics say has long been racially unjust and stacked toward defendants who can pay their way to freedom.
That push toward reform raises some weighty questions about how to get there: How can the system work for both safety and fairness? Does Mecklenburg’s new policy go too far — or not far enough — in deciding whom to release? And how, exactly, can you predict what will happen if someone is released before trial?
The county’s answer is an algorithm that gives defendants two scores: one representing the probability they will show up to court, and the other for the probability that they will re-offend before their trial. If a judge wants to release a defendant, a matrix developed by the county uses both scores to suggest a condition to do so — none of which require money to be paid up-front.
“There are a lot of people who sit in our jail awaiting trial simply because they cannot pay the money bail — and not because they actually pose a public safety risk,” said District Judge Elizabeth Trosch, who served on a committee of criminal justice officials that wrote the new policy. “We now have this tool that helps give judges really reliable information: Will you show up and will you harm the community?”
A BROKEN SYSTEM
Under Mecklenburg County’s previous policy, a defendant who had just been arrested would go before a judge or magistrate, who would use a bond schedule that suggested bail amounts for possible charges.
A judge could also choose to issue less restrictive options: a written promise to appear in court; an unsecured bond, where defendants only pay if they fail to come to court; or pre-trial supervision from the county.
But most defendants had to pay in cash or through a bail bondsman to be released before trial. In 2017, that was true for 64 percent of all Mecklenburg cases — including 55 percent of all those involving only misdemeanors, according to a News and Observer data analysis.
Trosch, the county judge, called it “this irrational world where we say, ‘I don’t know, 5,000 secure.’ What does that really mean? If you pay that, whatever I was concerned about is going to be OK?”
After receiving a grant from the Laura and John Arnold Foundation, a Houston nonprofit that works on criminal justice reform, officials pulled a sample of 10,000 Mecklenburg cases that had gone from arrest to case closure. They found that Mecklenburg’s system in fact did little to accurately tell whether someone would appear in court or commit another offense after they were released.
Instead of keeping the riskiest people in jail before trial, it locked up the defendants who could afford the bail amount being set: If they could pay, they could get out. If not, they were stuck behind bars — which sometimes meant losing their homes, jobs, or custody of their children.
“If I believe a person should have a chance at release and should be able to live their life as they await trial, without posing a threat to the community,” said District Attorney Spencer Merriweather, “there shouldn’t be an amount of money that’s an impediment to that.”
A FAIR ALGORITHM?
At the heart of the new bail policy is a controversial tool known as the public safety assessment, a proprietary tool that belongs to the Arnold Foundation, now known as Arnold Ventures.
That assessment takes a defendant’s age, prior convictions, and past failures to appear in court and runs them through an algorithm, resulting in two scores, said Sonya Harper, the county’s director of criminal justice services.
Those scores are then presented to a judge or magistrate, who must consider those scores in choosing whether to release or detain them defendant before their trial. That judge must also consider other factors including the nature of the offense, strength of the evidence, and time living in community.
Kristie Puckett-Williams, a regional field organizer for the ACLU’s Smart Justice campaign, said that these metrics — which include questions such about family ties, mental conditions and character — can be stacked against the most marginalized defendants in court.
“How do you measure ‘stable community’?” she asked. “Does living in a housing project count as a stable community?”
Under the new policy, judges and magistrates are supposed to issue a secure bond only when they want to detain a defendant. And magistrates must explain in writing every time they set these bonds, which require money in exchange for release.
If a judge wants to release a defendant, they must look to a matrix developed by Mecklenburg County as part of the new policy: Each score on the risk assessment suggests conditions for release — from a written promise to appear in court to intensive supervision — that does not involve paying money up-front.
But those public safety assessments — which are used in several dozen counties across the country, as well as all of Arizona, Kentucky and New Jersey — have also come under fire for what critics say is a racial bias that’s baked into the Arnold Ventures algorithm.
Puckett-Williams said that because African-Americans and other people of color are already disproportionately targeted by police, a system that relies on past convictions only keeps skewing the system against them.
Likewise, she said, one missed court date shouldn’t be considered a “failure to appear” — as it is under the new policy — because extenuating circumstances, such as a lack of transportation, or an emergency-room visit, could have kept someone from making it to court.
David Hebert, a spokesperson for Arnold Ventures, said in an email that his organization’s public safety assessment does not rely on demographic information, unlike similar algorithms. And in a preliminary study in Yakima County, Wash., use of the Arnold public safety assessment was found to have reduced racial disparities between black and white defendants, he said.
‘YOU HAVE TO BE VERY CAREFUL’
Others in the criminal justice system, ranging from bail bondsmen to sheriffs, say that relying so much on an algorithm to make decisions — as well as so rapidly encouraging release — may pose a threat to public safety.
Nationwide, police and prosecutors have blasted the algorithm for releasing people charged with gun crimes, domestic violence and repeat offenders. In New Jersey, one mother sued the Arnold Foundation after her son was killed by a man who had been released under the foundation’s algorithm.
And locally, public safety watchdogs are quick to point out when defendants commit crimes after being released: In 2016, a man was involved in a Charlotte shootout after being let go by the county before his trial.
That case is far from the norm. About 96 percent of people who are released into pretrial services appeared for court, according to Trosch, and less than one-fifth were arrested again in fiscal year 2017.
But for Tony Underwood, a spokesperson for the Union County Sheriff’s Office, it represents the risk that comes with releasing someone before trial.
“If you’re talking about your more violent offenders, you have to be very careful before you can consider some low bond or a written promise type of thing,” he said.
As part of Mecklenburg’s policy, individuals charged with capital offenses do not qualify for unsecured bonds, while those who have been charged with other serious crimes — from rape and other sex crimes to manslaughter and murder — cannot be put into pretrial supervision by the county, thus encouraging judges to keep them in jail.
Rhodes, the county’s chief magistrate, said he takes the possibility of defendants committing further crimes seriously.
“Every time I set a condition for release, I have to contemplate that something could happen,” he said.
Like most of the other criminal justice leaders behind Mecklenburg’s policy, he pointed out that cash bail and other forms of secured bonds allow dangerous criminals to get out of jail before their trial — if they can afford to post bail.
“Money is a false proxy for public safety and for likelihood of appearance,” Trosch said. “Somebody who is actually violent is not any less of a danger to the community because they can afford to post bail.”
Two weeks into the policy’s implementation, most say it’s too soon to evaluate how well it is working.
Merriweather, the district attorney, said that the new bail policy alone cannot bring more equity or safety to the criminal justice system.
“It’s not just a matter of sticking this thing into a matrix or machine and being thoughtful,” he said. “You have to make sure you’re intentional about what you present to the court.”
On a domestic violence case, for instance, the algorithm’s score may not reflect just how grave a threat is.
And Tully, the public defender, said he has not been shy about letting his staff know that the score assigned by the algorithm to a defendant can be contested by lawyers in court.
Puckett-Williams of the ACLU, meanwhile, wants to see an end to cash bail entirely.
“Money should not be a consideration for someone to receive justice,” she said.