What We Learned about Bail Reform and Police Budgeting Reform from Two Expert Panel Discussions
The Civic Federation hosted a series of criminal justice reform panel discussions as part of the annual conference of the Governmental Research Association in July. Here we highlight the key takeaways from discussions on two topics currently at the forefront of criminal justice reform across the nation: bail reform and police budgeting reform.
This panel discussion explored the state of pretrial reform efforts in various parts of the country—with a particular focus on Illinois, New Jersey, New York and Texas. Many jurisdictions across the country have already implemented policies to move away from money-based pretrial release decisions in order to reduce pretrial incarceration, detain only those individuals who pose a risk to public safety, and avoid unnecessary pretrial detention. However, New Jersey is the first to implement a statewide overhaul of its pretrial system. Illinois will follow suit when certain pretrial provisions of Public Act 101-0652 (the SAFE-T Act), including the elimination of cash bail, take effect in January 2023.
Moderated by Paula Wolff, Policy Advisor at the Illinois Justice Project, the discussion featured an excellent group of State leaders and criminal justice reform experts:
The following is a summary and key takeaways of the discussion held on July 19th:
Illinois’ New Pretrial Reform Law:
Illinois Supreme Court Chief Justice Burke highlighted many of the key pretrial components of Illinois’ new criminal justice reform law. In addition to eliminating cash bond, the law:
- Defines preventive detention;
- Strengthens legal defense for indigent defendants;
- Amends procedures regarding conditions of release;
- Defines willful flight;
- Creates a pretrial data oversight board under the Administrative Office of the Illinois Courts;
- Requires law enforcement to issue citations in lieu of custodial arrest in certain low level cases with a notice for appearance in court within 21 days; and
- Defines procedures for violations of pretrial release.
The Illinois Supreme Court, Justice Burke explained, has been involved in statewide pretrial reform efforts for several years. A Commission on Pretrial Practices convened by the Supreme Court released a final report with recommendations in April 2020, many of which were included in the SAFE-T Act. The Court continues to work collaboratively with legislators through its Pretrial Practices Implementation Task Force that is working to ensure successful implementation of the new law.
While there is much collaboration among stakeholders, there are also challenges, she said. Illinois has 102 diverse counties, which makes it challenging to create a single, uniform operational structure to provide pretrial services. Currently half of Illinois counties lack any pretrial services program, and only a quarter have substantial pretrial functions. Many of the requirements are unfunded mandates, so there will need to be state funding to make up for the cost of additional local personnel and for lost revenue from the elimination of bond payments.
New Jersey’s Success:
Judge Glenn Grant, Director of the Administrative Office of the Courts in New Jersey, described the efforts undertaken in New Jersey over the past several years. Following a 2012 study that found that 12% of people in jail pretrial were held on cash bond amounts of $2,500 or less, the New Jersey Courts initiated a largescale criminal justice reform effort aimed at reducing pretrial detention and ensuring only those people charged with the most serious crimes are held in jail. The Chief Justice established a Joint Committee on Criminal Justice, which issued a series of recommendations to the state legislature in 2014. Those included passing a constitutional amendment to allow for preventive detention of certain high-risk defendants, instituting the use of a risk assessment instrument for making pretrial release recommendations to the court, setting specific time parameters within which someone must be indicted and given a speedy trial and expansion of technology systems. The law did not eliminate cash bail, but cash bail is now virtually unused. The reforms resulted in a 47% reduction in the jail population between 2012 and 2019, as well as a change in composition of the jail population. Now 65% of those held pretrial are accused of first- and second-degree crimes and the number of people held on low cash bonds decreased from 12% in 2012 to 2.4% in 2019.
New Jersey initially funded the cost of pretrial operations and technology needs through an increase in filing fees. The reform bill provided for $22 million for a statewide pretrial services program and another $10 million for technology systems. Judge Grant said this was an inadequate level of funding and advocated for additional, more stable revenues. The state now allocates an ongoing annual appropriation to fund its pretrial program.
Nuances of New York Bail Reform:
Insha Rahman of the Vera Institute of Justice explained the differences between bail reform legislation passed by the state legislature in New York in 2019 and that of New Jersey and Illinois. New York’s bail reform was driven primarily by the Governor’s Office and passed by the legislature, whereas the New Jersey effort led by the Supreme Court achieved consensus from a wide array of criminal justice stakeholders, including law enforcement. The New York legislation allows judges to set cash bail, which was part of a compromise based on the fact that judges are supposed to set bail based on risk of failure to appear and not on the risk a defendant poses to public safety. The legislation mandated release in over 85% of cases, leaving judges to make decisions about what pretrial release conditions to set. Electronic monitoring was limited to felonies and serious domestic violence cases, which Ms. Rahman said differs from other parts of the country that have enacted bail reform. Backlash prompted by the bail bond industry and law enforcement led to negative media attention, and public support for bail reform plummeted from over 50% to less than 30%. The bail law was amended in 2020 to allow judges to set money bail in more cases. This amendment resulted in a 15% increase in the jail population since taking effect in July 2020.
Looking at bail reform nationally, Ms. Rahman said, we are now at a point where efforts are being undertaken to not only eliminate the role of money and profit from pretrial systems but also to reduce the number of people behind bars—especially those who do not need to be detained. However, there are still significant racial disparities between the outcomes of black and white defendants. While some places like New Jersey have shown success in removing wealth from the equation and reducing pretrial detention, racial disparity is still an area of reform that needs to be addressed.
Harris County and the State of Texas:
Nick Hudson of the ACLU of Texas explained that a lawsuit filed in Harris County challenging the constitutionality of cash bail led to a settlement that now requires the majority of people charged with misdemeanors to be released, as well as robust data collection. Prior to the lawsuit, 90% of people accused of misdemeanors were ordered to pay money bond for their release, compared to under 15% now. Harris County is driving the conversation about bail reform in Texas, Mr. Hudson said. He also spoke about state legislation introduced in Texas, which would actually expand the use of money bail rather than reduce it by requiring more people accused of serious crimes to post bond for their release. Additionally, the proposed legislation attempts to limit charitable bail organizations’ ability to bail out defendants. Further, Mr. Hudson said, the legislation fails to do anything to improve public safety. He said it is a missed opportunity to meaningfully reduce pretrial detention and address the racial disparities among those who are held in jail.
Consensus Building and the Role of Data:
In order to achieve consensus and buy-in among stakeholders, Judge Grant said communication, collaboration and partnerships are critical. The New Jersey effort led by the Supreme Court took an approach similar to that of a political campaign, holding meetings with a wide variety of internal and external stakeholders. Ms. Rahman emphasized the importance of talking to editorial boards and serving as a go-to resource for the media. Mr. Hudson noted the need for the courts and community groups to work together through meaningful partnership in order for bail reform to be successful. Based on experiences with negative media attention leading to backlash against bail reform efforts in places like New York and Texas, panelists agreed that it is critical to control the public narrative through reliable information. Inevitably, there will be cases when a pretrial defendant is released and commits a violent crime. When that occurs, panelists said, leaders need to be prepared to mitigate backlash and provide data that direct the discourse toward the facts rather than sensationalism.
The panel discussed the importance of data in providing a logical response to arguments against bail reform. Mr. Hudson noted that while data is necessary to show that bail reform is working, data alone is not sufficient. He said supporters of bail reform need to influence the public narrative amid organized opposition. Chief Justice Burke said the Illinois law will require local data collection, and for the first time the state will collect comprehensive information from all corners of the state. She noted the ongoing efforts of the courts to reach buy-in and input from all groups including consumers of the criminal justice system.
Ms. Rahman and Mr. Hudson noted that pretrial services only need to play a minimal role after a person is released pretrial. One key to getting people to return to court hearings is providing call and text reminders about upcoming court dates.
There is wide support for reforming traditional police services, but differences in opinion about how to achieve reform. The term “defunding the police” has been interpreted to mean many things, including disinvesting in police departments, shifting funding away from police to other community services, increasing investment in violence prevention and crisis intervention, or rethinking the role and responsibility of police officers. This panel discussion explored the alternative approaches being used in jurisdictions across the U.S. and ways researchers can approach smarter police budgeting.
The discussion featured a variety of speakers, each with a unique perspective and expertise on the topic of police budgeting reform:
- Rob Henken, President of the Wisconsin Policy Forum
- Ivy Lee, Public Safety Advisor for the Office of the Mayor of San Francisco
- Sandy Jo MacArthur, Law Enforcement Consultant, Retired Assistant Chief for the Los Angeles Police Department, and Advisor to the University of Chicago Crime Lab
- Maureen Quinn McGough, Chief of Staff at the Policing Project at NYU School of Law
- Chris Morill, Executive Director and CEO of the Government Finance Officers Association
- Karen Volker, Vice President for Strategy and Partnerships at Cure Violence Global
The following are some of the highlights on what we learned from this conversation.
Rethinking Municipal Budgeting:
Chris Morrill of the Government Finance Officers Association highlighted best practices based on the GFOA’s research aimed at getting municipal governments to think more holistically about their police budgets. Rather than the current standard of incremental budgeting, which bases next year’s budget on the past year’s budget and continues past inequities while failing to incorporate community input, local governments should aim to follow these seven principles:
- Rather than determining spending based on historical precedent, focus on cost-effective budgeting;
- Disaggregate programs—rather than using departments and divisions as units on which budgeting decisions are based, use priority-driven budgeting that focuses on outcomes;
- Use the budget process to think outside of department silos and look for multidisciplinary approaches across departments and across sectors;
- Focus more on prevention rather than reactive remedial actions;
- Use data and evaluation in budgeting decisions;
- Look for smart, strategic ways to reduce costs such as shared services, reviewing special units and redirecting resources to where they are most effective; and
- Rather than framing the budget with an opposing “either/or” approach, budget from a “both/and” mindset where multiple goals can be accomplished (e.g., protection of both public safety and individual rights).
Sandy Jo MacArthur pointed out the issues with silos both within and between departments. Echoing the research of the GFOA, she said there needs to be a much more holistic approach to budgeting in order to merge siloes. Often, specialized units are created in reaction to an immediate issue, which makes government service delivery more fragmented and expensive. Government should be looking at long-term solutions rather than quick responses. She also pointed out that other services and programs cannot succeed in communities until violence is stabilized.
Karen Volker noted that violence prevention programs are much less costly to run than police services. But while reducing gun violence saves governments money and improves social and economic outcomes, savings do not translate directly to police department budgets because they are budgeted for separately.
Alternative Response Models:
Maureen McGough of the Policing Project at NYU explained that both community members and police agree that police officers are asked to do too much without being sufficiently equipped to respond to certain situations. There are three main alternative police models to respond to a 911 call for service: 1) alternative response in which a non-police officer responds; 2) co-responder model in which a behavioral or mental health specialist is dispatched alongside a police officer; and 3) a commonly used approach aimed at improving police response as it currently exists, such as by providing additional training or diversion rather than arrests. The research on these models is limited because of inadequate data and evaluation of dispatch and the risks associated with calls for service. Local data also fails to capture information about those who do not call 911. Ms. McGough pointed out that having an alternative response model alone will not eliminate the burden on police. There also needs to be a way to evaluate these programs.
Karen Volker described the Cure Violence model that treats violence as a contagious disease that can be prevented through behavior modification. It is an evidence-based program that uses “violence interrupters” to prevent people from spreading violence from within the communities most impacted by gun violence. Preventing violence before it happens saves both the life of the victim and the life of the would-be criminal, and the model has proven to significantly reduce rates of shootings and violent crimes.
Similarly, San Francisco has invested heavily in violence prevention as well as alternative response as part of its public safety strategy. Ivy Lee explained that the city is aiming to put more emphasis on prevention than treatment after the fact, and investing in services like mental health and homelessness prevention. San Francisco announced a roadmap for reimagining its public safety system in June of this year that takes a public health approach to reform and prioritizes diverting non-violent calls for service away from the police department to non-law enforcement and funding for racial equity. The city uses crisis response teams to handle calls related to mental health or substance use disorders. Both the disaggregation of data and a mindset shift are driving these efforts.
Need for Resources:
Rob Henken spoke about the Wisconsin Policy Forum’s research on Milwaukee and other Wisconsin cities, which has found that local governments in Wisconsin have been disinvesting in police out of necessity. Predating the events following the murder of George Floyd in 2020, Wisconsin municipalities were already cutting their budgets due simply to a lack of resources. Despite staffing cuts in the Milwaukee Police Department, however, there were no savings because of increasing salary and benefit costs. Cutting staff alone has not freed up the resources needed for new community investments. Reimagining public safety, therefore, will require additional funding.