Criminal Justice

Risk assessment urged for bail process

October 22, 2019

Ray Carter

Under existing Oklahoma law, people arrested for crimes can post bail and be released even if they pose a threat to others, while other individuals posing no threat remain behind bars awaiting a hearing because of poverty, officials told lawmakers at a legislative study.

Lawmakers were urged to change Oklahoma’s bail laws to shift the focus to risk rather than financial means when determining if an accused offender should be released.

“If someone has the money to make bail, they’re out without conditions,” said Corbin Brewster, Public Defender of Tulsa County.

He noted this includes people with “a long rap sheet and criminal history” who would “score off the charts” on a risk assessment.

The consequences of the current system can be severe, officials said. Rami Jabara told lawmakers the failures of Oklahoma’s bail system played a role in the death of his brother, Khalid, who was killed in Tulsa by a neighbor, Stanley Vernon Majors. Majors had been released on bail despite facing charges for running down Jabara’s mother, Haifa, with his car.

“Had a simple assessment of risk tool or pre-trial release program been utilized where the dangerousness of the defendant been assessed, I am almost 100 percent sure he wouldn’t have been able to get out and kill my brother,” Jabara said. “I think it would have stopped at hitting my mom.”

Julie Warren, an official with the organization Right on Crime, told lawmakers Kentucky has incorporated risk-assessment reviews into its front-end processes. In one county in Tennessee that has used risk-assessment processes, she said pretrial releases have increased by 73 percent, while the share of those who subsequently fail to appear for court hearings has increased only six percent.

Support for reforming the system came from both ends of the political spectrum.

“There is no link between the amount of bail, the amount of monetary bail set, and the risk of danger,” said Portia Allen-Kyle, an official with the American Civil Liberties Union. “Bail was meant to reassure appearance. It was not meant to address the dangers that people pose.”

“The current system often fails to uphold individual rights by jailing defendants based on their ability to pay a determined monetary sum instead of assessing their flight risk or danger posed to the community,” said Joey Magana, Oklahoma state deputy director for Americans for Prosperity. “A system that relies on money instead of risk assessment means that those who are well-off financially can pay their way out.”

Timothy Tardibono, executive director of the Oklahoma County Criminal Justice Advisory Council, said bail should be set based only on the most single serious charge facing an individual, rather than “stacking” bail amounts for every charge filed. Tardibono also said an individual’s ability to pay should be considered during the bail-setting process.

Oklahoma County Judge Kevin McCray said overly rigid bail processes contributed to Oklahoma County jail problems.

“The strict adherence to a bond schedule, and to secured money bail, was contributing significantly to the overcrowding in the county jail,” McCray said. “We were ending up with a significant number of people there without any kind of money whatsoever to bond out and they were being held without any kind of individual assessment as to their risk or their public safety threat.”

County officials reviewed bail processes and concluded that “stacking” contributed to the number of people who could not pay bail and stayed in jail, he said.

Tardibono said those who are held in jail pre-trial because of an inability to pay bail actually become more likely to skip town or commit other crimes as a result of the disruption created by lengthy pretrial incarceration.

“The data is very clear across the country,” Tardibono said. “The longer you hold someone, pretrial incarceration, without giving them a trial, the more likely they are to fail to appear and to recidivate.”

However, even as a wide range of officials endorsed reform, some divisions were notable.

Allen-Kyle said it is “deceiving” to credit the use of risk assessment in the pre-trial process in New Jersey with the success of reform in that state, saying New Jersey also adopted speedy-trial reforms and procedural safeguards that deserve most of the credit, and said that state also has a “robust” public-defender system.

Allen-Kyle said risk assessments are “not an exact science.”

“Does it give you the answers you need?” Allen-Kyle asked. In some instances, she said, “we strongly believe that it does not.”

Many other officials, particularly those involved in law enforcement, raised numerous concerns about potential reforms in the bail process, particularly those that would no longer require many people to post bail before release.

Craig Sutter, executive director of the Oklahoma Indigent Defense System (OIDS), said he worried that a bail-reform bill considered this year, which was defeated on the House floor, would have resulted in “an exodus of contractors” from the OIDS system because it could have increased caseloads and sufficient funding was not provided. Sutter said $3 million in annual funding would be required to pay for the proposed reforms at OIDS, but just $2 million was provided.

In 2003, Oklahoma Highway Patrol Trooper Nikky Green was shot and killed in an interaction with a meth cook. Subsequently, lawmakers voted to limit bail for individuals involved in meth crimes. Green’s widow, Linda Green-Bennett, told lawmakers proposed bail reforms would water down that law.

“This is a slap in the face to the families of these slain troopers, as if we haven’t paid a high enough price already,” Green-Bennett said.

Washington County Judge Russell Vaclaw, who is the current president of the Oklahoma Judicial Conference, said bondsmen also provide invaluable service to the courts at no expense to taxpayers.

“If we do have that occasion where someone does not show up in court, we have at least one bondsman who’s very quick to either go get them, call them, text them, whatever, and get them there,” Vaclaw said.

Cleveland County District Attorney Greg Mashburn told lawmakers, “As the law currently stands today, nothing prevents people being released, pretrial, when it’s appropriate to do so.”

Mashburn noted that numerous offenders in Cleveland County are released on “Personal Recognizance” (PR) bond. With a PR bond, bail is set, but an individual does not have to pay anything so long as the individual makes all court appearances.

“Even on violent crimes where they’ve hurt somebody really bad, PR bonds are getting used,” Mashburn said.

Blake Green, undersheriff of Cleveland County, noted that State Question 780, which transformed many drug-possession and property-theft felonies into misdemeanors, has created financial stress on municipalities.

“You’ve heard testimony this morning that we’ve been down on felonies and that we increased our misdemeanors,” Green said. “From a county point of view, that burden, financially, has shifted from the state to the county—and I see some heads shaking up and down here. It really impacts us.”

For Cleveland County, the state question shifted millions in annual costs, he said. Green warned that some proposals that would eliminate bail could also increase financial strain at police departments when individuals do not show up for their court appearance.

“Our concern is, without the bail component to that, that financial burden is going to shift back to the sheriff’s department to go and find, to go and get, to do stakeouts, whatever you want to call it, to bring these folks back to court,” Green said. “It’s either some version of that or we have to make hard decisions where we just choose not to go.”

Max Cook, district attorney for Creek and Okfuskee Counties, also warned lawmakers that the unintended consequences of prior sentencing reforms are growing.

“The decriminalization, if you will, of possession of drugs or the lesser criminalization, tends to attract more criminals,” Cook said. “More criminals in that area tends to attract more distributors. You get more of a criminal element. You lessen the time that they are going to go to prison, and so it becomes more of a slap on the hand. So you start attracting that which you don’t want. What we would like to do, I think, is attract the good people, to pass the laws that attract businesses, pass the laws that protect our citizens. That’s the first job of government is to protect our citizens.”