SALT LAKE CITY--On an early May morning in 2010, 16-year-old Kalief Browder, who lived with his family in the Bronx, N.Y., was arrested for stealing a backpack.
“I didn’t rob anybody,” Browder told the arresting officer. “You can check my pockets.”
But the next day, he was led into a courtroom, where he learned he had been charged with robbery, grand larceny, and assault.
A judge set his bail at $3,000, an amount well beyond his family’s resources.
So Browder was sent to Rikers Island to await trial. He spent the next three years at the New York City jail known for its culture of violence, nearly two of them in solitary confinement.
He never went to trial. After three years, the case was dropped and all charges against him were dismissed.
Browder tried to move forward, but his experience at Rikers continued to haunt him.
In 2015, at his parents home in the Bronx, he hanged himself.
In May, Utah took its own step toward pretrial reform by implementing a new tool called the Public Safety Assessment, which is designed to give judges more information about a defendant’s likelihood of flight and danger to the community before setting bail.
In theory, the level of bail set reflects the severity of the crime and thus the risk that the accused will flee or cause harm to the public while awaiting trial.
But experts like Shima Baradaran Baughman, professor at the University of Utah College of Law and author of The Bail Book: A Comprehensive Look at Bail in America's Criminal Justice System, say that’s not usually the way things play out.
According to Baughman, the fundamental injustice of the bail system, both nationally and in Utah, is that its workings disproportionately affect the poor.
“People who have money are released because they can pay bail, even if they pose a high risk of violent crime,” she explained. “People who do not have money to pay bail are detained even if they are safe to released.”
Baughman said minorities are particularly affected, often paying double the amount of bail as white people and sitting behind bars two times longer for the same crimes, “often because they cannot afford bail.”
Some states, such as New Jersey, have moved toward eliminating bail in the majority of circumstances, in favor of a system in which those at significant risk of flight or to public safety are either released under close supervision or required to remain in jail until their trial. Others, who present little to no risk, are released without bail.
“There’s tremendous momentum for bail reform around the country,” said Sandra G. Mayson, an assistant professor at the University of Georgia School of Law. “What’s most remarkable and most exciting is that there is broad bipartisan support for rationalizing our bail system.”
The incarceration of low-income individuals can have a devastating impact on individuals and families, Baughman explained. Studies have shown that pretrial detention increases the likelihood that a person will commit future crime, potentially due to the destabilizing effect on defendant’s lives.
“Families are separated and people lose stable income, housing and child care situations,” said Baughman. “When release on bail is based on money, poor families are hit the hardest.”
It’s also expensive for the taxpayer, Baughman added. More than 60 percent of inmates in jail nationwide are awaiting trial, costing approximately $14 billion per year. A 2015 study by the Utah State Courts indicated that 52 percent of inmates in Utah jails were awaiting trial.
“The vast majority of incarceration across the country is pretrial detention at the local level,” said Cherise Fanno Burdeen, chief executive officer of the Pretrial Justice Institute, a Maryland-based advocacy organization. “That’s not because everyone is dangerous and needs to be held, it’s that being arrested comes with a money bond amount which the vast majority of people can’t afford.”
That’s where the Public Safety Assessment comes in. Developed by the Laura and John Arnold Foundation, a Texas-based criminal justice nonprofit, the PSA has already been implemented in several other states.
It works like this: you plug in a defendant’s criminal history, age and prior failures to appear in court. The software then uses an algorithm to calculate the likelihood that someone will reoffend, commit a violent crime, or will fail to appear at a future date.
The tool is not without its critics. Some say risk assessment tools like the PSA can reinforce racism. And there are others within the bail bonds industry who say it poses a public safety threat.
“The PSA is recklessly endangering the lives of citizens who live in the United States,” said Beth Chapman, president of the Professional Bail Agents of the United States, and wife of Duane “Dog” Chapman of the reality TV series "Dog the Bounty Hunter."
Dyon Flannery, a Utah bail enforcement agent, said it will open the floodgates of crime. “It will change the culture of Utah,” she said.
How the PSA works
Utah Third District Judge Todd Shaughnessy said within 24 hours of an arrest, judges in Utah have a critically important decision to make: if, and how much, bail should be set for the accused.
But until the PSA was implemented, judges didn’t have much information to go on.
“It was shocking to me how little information we as judges had when we had to make a decision on whether someone was going to be released or not,” said Shaughnessy.
Judges often have access to no more than a probable cause statement filed by a police officer that could be just one sentence long, said Keisa Williams, associate general counsel for the Utah Administrative Office of the Courts.
“That statement might say something like ‘she was in possession of heroin,’ with no information provided about the background or criminal history of the accused,” said Williams.
Judges are able to refer to a Uniform Fine and Bail Schedule, which helps ensure judges in different areas of the state are setting the same bail amounts for identical charges.
But, Williams said, that bail schedule doesn’t provide the judge with any information about an accused’s criminal history, risk of reoffending or skipping a court date. “Our judges need more information, fast,” said Williams. “That’s what the PSA is designed to do.”
Researchers analyzed the data and identified the nine factors that best predict whether a defendant will engage in new criminal activity, commit a violent crime, or fail to appear in court if released before trial.
Utah's PSA is an automated report about a defendant, including their criminal history, failure-to-appear records and history of violent offenses. The algorithm provides two risk scores — one for failure to appear in court, and another for the potential of committing a new crime. The assessment also includes a “violence flag” that indicates whether the defendant poses an elevated risk of committing a new violent crime if released.
Williams said it’s important to note the tool is not intended to replace judicial discretion.
“It’s just another data point for them,” said Williams. “They can ignore this if they want, or they can change the (PSA's) recommendation."
Will the PSA reinforce racism? Could it make Utah less safe?
In 2016, ProPublica published a study that alleged COMPAS, another pretrial risk assessment tool, was “biased against blacks.” The article stated that the tool was particularly likely to falsely flag black defendants as future criminals, labeling them that way at almost twice the rate as white defendants.
Experts agree that pretrial risk assessment tools can have the potential to reinforce racism.
“A major con is sometimes the way that pretrial risk assessments are set up, they can exacerbate racial disparities,” said Priya Raghavan, Counsel at the Brennan Center for Justice at the New York University School of Law.
She said that’s because they can be designed to consider social factors, education levels, employment histories, or family structures, which can “negatively affect African-American and Latino defendants.”
But Williams said the PSA avoids many pitfalls of racial bias by sticking solely to criminal history.
“This tool is about as race-neutral as you can get,” said Williams. “No interview is conducted and race is not included in the report or score calculation.”
She added that it contains an important element of transparency.
"Unlike some other tools, the PSA algorithm is publicly available. In fact, it is posted on the court's website," said Williams. "Defendants and their lawyers have the opportunity to do their own risk assessments and challenge the PSA’s recommendation in court."
The most vocal opposition, both locally and nationally, to bail reform and the implementation of the PSA tool has come from the bail bonds industry.
Beth Chapman said she views the PSA’s premise with skepticism.
“You’re dealing with someone’s human emotion, you’re gambling on human behavior,” she said. “No nine question risk assessment can help you determine whether a person’s going to reoffend or not, whether a person is going to be a risk to society or not, and whether a person is going to return to court or not. It just doesn’t do that.”
Wayne Carlos, president of the Utah Association of Professional Bondsmen and Agents, told the Deseret News that while Utah has not eliminated monetary bail, he's concerned that’s the inevitable next step.
“Everywhere that PSA has been implemented bail is almost nonexistent,” said Carlos. “That’s our fear.”
Nationwide, the bail bonds industry rakes in about $2 billion in revenue each year, according to a 2012 Justice Policy Institute report. But Carlos said it's about more than making money — bondsmen provide an important public service by keeping communities safe.
He said his company has bonded over 80,000 people out of jail and has done the difficult, sometimes dangerous work of tracking them down to make sure they show up to court.
And, he added, it’s at no cost to the taxpayer.
Williams said the next step is to study the outcomes and whether the tool helps reduce failures to appear and recidivism. She said the Harvard Access to Justice Lab will be conducting free studies of the tool in several counties in Utah.
In addition, courts will be tracking pretrial outcomes statewide to ensure the PSA, and pretrial release and supervision programs overall, are successful. The courts will be conducting quality assurance tests and making adjustments to the entire pretrial program as needed, said Williams.
To get started working on pretrial reform as a whole in Utah, Williams said the Utah State Courts have created a standing committee on pretrial release and supervision. That committee consists of stakeholders throughout the state, including representatives from the legislature, bail bonds industry, and law enforcement as well as defense attorneys, prosecutors and judges.
But, she said, “the court is taking a measured approach to pretrial reform. We are not attempting to completely overhaul pretrial practices in Utah all at once,” as some other states have done by passing a constitutional amendment and eliminating the use of monetary bail.
“We can’t say right now what, if any, future pretrial reforms should be made in Utah. That’s why we’re making incremental changes, coupled with outcome studies, feedback from stakeholders and ongoing evaluations,” said Williams.12 comments on this story
Burdeen with the Pretrial Justice Institute said Utah's implementation of the PSA is just one piece of a larger, nationwide effort to change problems associated with pretrial detention.
“The PSA is one component of an entire change process," she said. "It isn’t a silver bullet, it doesn’t change things all by itself."
Burdeen said the Pretrial Justice Institute's ultimate goal is to reduce pretrial detention nationwide to no more than 10 percent of the prison population.
“That would be life changing for millions of people,” she said.