Happy 2021! It’s a new year and guess what? Not much has changed on the cash bail front. There is a gap between the battle lines – for, on one side; against, on the other – and a vast gray area or no-man’s land in the division between the two. As a bondsman working the mean streets in Adams County, Broomfield County, Weld County, or the Greater Denver area, you should be standing squarely on the “for” side of the great battlefield.

What It Really Means

But, if you waver ever so slightly when thinking about the issue, consider once against the topic surrounding the myth of affordable bail and how it affects the bail bonds industry. The cost of bail, of course, varies by jurisdiction and crime, with some charge’s ineligible for bail altogether, especially if a judge determines the defendant poses an imminent risk to himself, someone else, or the public at large. A cash bail amount that some consider perfectly reasonable based on the crime and other factors could easily be regarded as excessive along the same lines of reasoning. Cash bail opponents insist it should be eliminated completely, nationwide, but we won’t regurgitate their logic.

Here are some examples of what is happening with the idea of “affordable bail” across the United States:

• The U.S. Court of Appeals for the Fifth Circuit, covering Louisiana, Mississippi, and Texas, opined on December 28, 2020, in the case of Daves v. Dallas County, Texas that bail itself is ok, but the procedures by which it is implemented is on shaky constitutional grounds.
• In early January, a Chicago media outlet “identified 32 people charged with murder, attempted murder, or shooting someone in 2020 while free on “affordable bail” for other serious felonies. Four of those defendants are accused of shooting or killing more than one person.”

Likely, cash bail opponents will latch onto the idea of affordable bail like never before.

More Scrutiny for Risk Assessment Tools?

If you are a Denver-based bail bonds professional, you know the Colorado Pretrial Assessment Tool (CPAT) and why it is controversial. Like other pre-trial risk assessment tools, it is algorithm-driven and crunches numbers to decide a defendant’s risk level. It has problems. CPAT’s proponents regard it as the best thing since processed American cheese, but those of us with a more discerning palate know when the fromage is past its “best when used by” date.

All of us working in this industry need a better understanding of laws, policies, procedures, algorithm-based tools, and socioeconomic factors that affect the use of cash bail. It is possible, if even slightly, that a small percentage of Colorado bail bonding workers, think CPAT and similar tools are a good idea. An article called “Racist Algorithms or Systemic Problems? Risk Assessments and Racial Disparities” may be enlightening and give you talking points. From the abstract: “Recently, scholars and policymakers have raised concerns that risk assessment instruments may exacerbate these disparities. While it is critical that risk instruments be scrutinized for racial bias, some concerns, though well-meaning, have gone beyond the evidence.”

Risk assessment tools need more scrutiny because they are thought to be racially and gender-biased. Some observers believe the tools themselves are worthwhile and may be salvageable, and that the real issue is what is often referred to as “systemic racism.” Sometimes called institutional racism, this is a form of racism that is naturally embedded within society and organizations across the United States.

The Urban Institute believes risk assessment tools have merit, “But to address systemic biases, developers should exercise transparency regarding each tool’s data sources, decision points, models, and limitations. Policymakers and legal officials must understand the strengths and weaknesses of the data used to create the risk odds and categories.”

The End of Cash Bail and the U.S. Congress

One thing the bail bonding industry should be watching very closely are potential actions by the newly sworn-in 117th Congress, our legislative branch seated in Washington, D.C. In case you have been living under a rock, the Democratic Party controls the White House with Joe Biden as President, the House of Representatives, and the Senate. Democrats have a firm majority in the House, and their lead in the Senate is only assured when you factor in two independents who caucus with them, and Vice President Kamala Harris – who serves as “president” of the Senate and is the tie-breaking vote on legislation.

By default, opponents of the cash bail system assume that a Democrat-controlled Congress will now move to eliminate it completely, if not in most cases. As we already saw last year, efforts to eliminate cash bail as part of round two of the HEROES ACT failed. At the time, the Democrat-proposed bill passed the House of Representatives, but never made it to the Senate as then-Majority Leader Mitch McConnell (R-Kentucky) pretty much just ignored it until another slimmed-down bill was passed in December 2020.

But what about now? President Joe Biden, even with Democratic control of the House and Senate, has bigger fish to fry. He must marshal a cogent plan for COVID-19 vaccinations nationwide, he has to begin rebuilding the economy and get people to work, he has to unite Americans, rebuild the United States’ role internationally, and on and on.

Assuming Congress will act on cash bail reform in the near-term is a pipe dream only on the part of opponents of the current system. And considering how decisive the country is right now, it might be best for Congress to stay away.