Mark A. Nordenberg and Frederick W. Thieman: Judging judges fairly
Setting bail is a critical part of our criminal justice system
March 12, 2017 12:00 AM
By Mark A. Nordenberg and Frederick W. Thieman
Depriving any person of his or her liberty, especially prior to an adjudication of guilt, is a serious and intrusive action to be used wisely by governments created not only to protect public safety but also to respect individual liberty. Both the federal Bill of Rights and the Pennsylvania Constitution caution against the use of incarceration before a person even has his day in court. Bail is not punishment; its purpose is to ensure the presence of the charged individual at a future proceeding while avoiding clear risk to the public.
A blanket assumption that pretrial incarceration will improve public safety is not supported by the best available evidence. To the contrary, those states that have been most aggressive in reducing the use of incarceration not only are better at controlling the substantial costs associated with jails and prisons but have seen larger reductions in crime than those states that have maintained a “lock-em-up” mentality. Some neighboring jurisdictions, such as New Jersey and the District of Columbia, have eliminated bail completely in favor of releasing all defendants, with no monetary conditions, except in the most serious of cases. Even those jurisdictions have not seen a deterioration of public safety.
This is the context within which a March 4 Post-Gazette article should be considered. That article’s headline was “Man Charged in Homicide Was Out on Bail in Two Separate Cases.” Both that headline and the content of the article itself can fairly be read as suggesting that a highly regarded Allegheny County judge made an irrational decision, or worse, that the criminal justice system in Allegheny County is broken. Neither inference would be accurate.
A recent report from the University of Pittsburgh’s Institute of Politics noted that the setting of bail in a criminal case is a difficult but critical stage in our system of justice — one that can be improved upon by the use of evidence-based pretrial risk-assessment tools. That is exactly what Judge Jeffrey Manning had done in the case in question. Relying on a risk-assessment tool developed for use in Allegheny County, he chose to maintain bond requirements totaling $30,000, rather than jailing the defendant pending his trial. As such, criticism of the tool might be supportable, although scientific data would suggest otherwise, but criticism of the judge for using it is not.
In recent years, much research has focused on approaches to improving criminal justice. Judges and magistrate judges in Allegheny County traditionally had to rely solely on their own “gut” when considering issues of bail. Today, they can make use of evidence-based assessment tools to help calibrate risk. The use of such tools does not preclude the application of their own experience and instincts but rather supplements them.
A former prosecutor, Judge Manning is anything but soft on crime. However, he is smart on crime. From his position as president judge, he has been an advocate for evidence-based assessment tools and utilizes them in the nearly 2000 bail appeals he hears each year. He also has played a significant role in the recognition earned by the Allegheny County Court of Common Pleas as a national leader in its committed efforts to improve our criminal justice system. Among other notable advances are the use of specialty courts, one-stop community-based probation centers and a model re-entry program. Bail practices currently are being further improved through the utilization of a new, nationally developed risk-assessment tool that is being deployed here and in 23 other select jurisdictions.
Presumably the article in question merited front-page coverage both because there was a loss of life, which always is tragically newsworthy, and because the circumstances — that the person charged had been released on bail — were so unusual. But no system is perfect, and no system should be judged by a single, aberrational result. Instead, the broader context must be considered.
In Allegheny County that broader context includes the fact that our jail houses a daily population of nearly 2,200 individuals, a dramatic increase of some 50 percent over 1995, when the jail first opened and local crime was at its highest. Moreover, nearly 81 percent of those individuals housed in the county jail have not been convicted of the underlying charge that keeps them confined. Far too many are there simply because they cannot afford bail, which most often reflects a lack of resources rather than the seriousness of the charge.
As might be expected, these burdens fall most heavily on the poor who are, statistically, more likely to be minorities or people of color. It clearly is one of the reasons that black men in Allegheny County are booked into jail at even higher rates than the national average, which is already six times the confinement rate for white men.
Looking back at the case in question, it is not clear that even if bond had been increased or revoked, public safety would have improved. A higher bail might simply have been posted because it is not only the wealthy, but often the best criminals, who can afford to pay high bonds. Even more important, holding pretrial defendants in jail for even a few days is strongly correlated with higher rates of subsequent criminal activity. Simply stated, while it may seem easy with 20-20 hindsight to make a connection between a bail decision and a subsequent offense, it is equally true, but not nearly as intuitive, that overuse of pretrial detention could also lead to an increase in crime.
Shortly after the report from the Institute of Politics was released last November, the Post-Gazette published an editorial triggered by the death, in the Allegheny County Jail, of a person who had received a 10-day sentence for the summary offense of loitering. Among the circumstances of that case was the fact that the defendant was a registered sex offender and apparently had ignored numerous warnings not to loiter near a bus stop that often was used by children. The question asked by the editorial was whether some non-jail alternative would have better served the interests of both the defendant and the taxpayers.
Such questions should regularly be asked about a system that touches lives in such fundamental ways, particularly when a life has been lost, whether that is because a person was incarcerated or was not incarcerated. But context is critical, and so is the recognition that judicial decision-making is necessarily part art and part science. It relies on the discretion of committed and experienced jurists with good instincts but also demands the deployment of the best tools that recent advances in research and technology can develop. Those who make these decisions on a regular basis in what might be hundreds or even thousands of cases should be accountable to the public and judged by fair standards. They should not, however, be singled out in a single case where they were properly deploying best practices that, in an imperfect world, cannot be made perfect.
Mark A. Nordenberg is chairman of the Institute of Politics and chancellor emeritus at the University of Pittsburgh. Frederick W. Thieman is the Henry J. Buhl Jr. Chair for Civic Leadership with the Buhl Foundation and a former U.S. attorney for the Western District of Pennsylvania.
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