An approach to setting bail in Johnson County could spread across the state.

Let’s say you’re arrested. You’re booked into your local jail and the district attorney decides to press charges.

The next day, you make your first court appearance in front of a judge, who then has to make a decision. Let you go home before trial — or keep you in jail?  And under what conditions?

A pretrial stint in jail could last for weeks and keep you from your children, your car payments and your job. You could lose access to resources you need to win your case. You could spend sleepless nights in a crowded, dangerous, poorly maintained detention center — all without being convicted of a crime.

Unless, of course, the judge lets you bail out: pay a certain amount of cash, get released from jail, and get the money back if you show up for court.

But the amount might be too high for you to afford. So you might pay a bond company a nonrefundable percentage of your total bail. In return, that company bails you out — and hunts you down for the full amount if you skip your court date. Can’t rustle up the money for a bond company? Sit things out in jail.

Cash bail is supposed to ensure that you come back for trial. But the traditional bail system draws fire for discriminating against the poor and disproportionately affecting the livelihoods of racial minorities, who are already more likely to be arrested and charged with crimes.

Now Kansas courts want to rethink the concept. The Kansas Supreme Court has convened a task force of judges, attorneys and corrections officials to study pretrial reforms and submit recommendations in mid-2020. The state could eventually join California, New Jersey and others by overhauling its conditions for awarding bail in state courts.

Yes, tides have shifted in recent decades, with some advocates saying any form of pretrial detention violates the U.S. Constitution by imprisoning a person before they’re convicted

A new way of assigning bail

One possible alternative is a statistics-based system already used by some of the most populous counties in Kansas. Data-based pretrial risk assessment takes information gathered from years of arrests and trials. It pinpoints which characteristics are related to two outcomes the corrections system wants to avoid: a defendant skipping their court date or committing another crime once they’re released on bail.

Depending on which factors they meet, defendants are assigned a risk level with a corresponding recommendation for a bail amount. Johnson County, which has used a form of risk assessment since 2009 for minor crimes.  

The county has had a custom risk assessment based on its own arrest data since 2014 and has revised it multiple times. County corrections director Robert Sullivan said the system is currently being used to assess people who have been charged with crimes that are likely to carry a sentence of probation, rather than prison.  The county plans to expand the assessment to all detainees in February.

“What we’re trying to do is move away from basing release from jail on (a defendant’s) ability to make bond,” said Sullivan, “and base it more on a detainee’s risk of failing to appear for court.”

The county hired University of Missouri-Kansas City professor Alex Holsinger to develop the system. Holsinger analyzed data from 2011 and 2012 to find which characteristics were most related to a failure to appear in court or committing another crime.

Holsinger found that people who live outside of the state are more likely to skip court than people who live in Kansas. Prior arrests, substance abuse and being unemployed are other risk factors.

The nature of the charge also has an effect.

“If your charge is DUI related, that’s considered a risk factor. If it’s drug related, that’s considered to be even more of a risk factor,” Holsinger said. “Somebody who doesn’t have any (previous) jail time is considered less risky than somebody who does.”

The factors are tallied into a numerical score. That’s handed to judges, who decide whether to set cash bail or other conditions of release based on a defendant’s risk level and other factors.

For example, a person who is charged with a misdemeanor DUI, who lives outside of Kansas but doesn’t have any other risk factors, would receive a score of 3. That means the person is considered “low risk,” and could be released, not on cash bail, but on a personal recognizance bond — a signature promising to come back.

But another person charged with the same crime might receive a higher score if they are unemployed, have been in jail before, have a history of substance abuse, live outside of Kansas, and were first charged with a crime below the age of 21 — all risk factors.  That person would receive a risk score of 8 and would be considered “serious risk,” which carries a recommended bond amount of up to $2,500.

Holsinger said the scoring system helps judges make more objective decisions while still allowing them discretion.

Next steps

But some critics of data-based pretrial risk assessments say the formulas don’t do enough to mitigate the negative effects of pretrial detention.

Those critics say risk assessments can perpetuate racist and class-based biases built into the data. Because people of color and poor people are already more likely to be stopped by the police and arrested, argued John Raphling, a senior criminal justice researcher at Human Rights Watch.

Racial bias, public safety and reducing jail and prison populations will be on the minds of the members of Kansas’ Pretrial Justice Task Force as they develop their recommendations over the next year and a half. Data-based pretrial risk assessment is likely to be on the list of recommended reforms.

“There’s a wide range of approaches,” said Arnold-Burger, chair of the task force. “And we need to find out what works best in our state.”