New Bail System in San Francisco Could be Fairer to Poor Defendants

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Last month I wrote about the debate around fixed bail amounts that was taking place in Georgia. At that time the Department of Justice had filed court documents stating that fixed bail amounts disproportionately affected the poorest members of communities.

Fixed schedules apply a certain baseline bail amount based largely on the crime that has been committed. This amount can then be modified by other factors, as seen fit by the presiding judge. The problem is that this can result in bails that are too high for poor people to pay, leaving them to sometimes sit in jail for extraordinary lengths of time before facing trial.

According to civil rights groups, this violates the equal protection clause in the Constitution by essentially punishing poor people more harshly for the same crime than wealthier people.

On the West Coast, however, San Francisco has become the latest city to join a growing number of communities that have rejected fixed schedules for setting bail amounts.

The system that has been adopted by San Francisco is the Arnold Foundation system. In this system, bail amounts are set on the basis of the criminal history of the person facing trial, whether they are a flight risk, whether they will commit more crimes while awaiting trial, and whether or not they’ll appear for trial.

So far, the Arnold Foundation system has worked well in the places that have adopted it, increasing the number of defendants allowed out of jail to live their lives before their trial. Especially for poor defendants, missing work because of jail time can have devastating results for their economic future, resulting in lost wages, if not lost jobs, which can actually lead otherwise law-abiding citizens to further criminal acts.

Most importantly, the system does not make assumptions about defendant based on race or sex, unlike another system developed by the company Northpointe, which on numerous occasions calculated that black defendants were much more likely to skip trial or commit further crimes than white defendants.

The only potential problem is that even though the Arnold system does not take race into consideration, the formula could cause judges to make predictions based on how use of other systems have previously impacted the defendant. This could lead to reinforcement the inequalities of the criminal justice system; thus, it is important for judges to weigh the impact of other previously used systems such as Northpointe on the current status of a defendant.