More inmates could walk out of Orange County jails without posting bail under a plan that uses a risk assessment – not cash – to make sure they show up to court.

Critics call it a get-out-of-jail card at the expense of taxpayers and bail companies, but proponents argue it’s an improvement to a system that currently determines who gets out of jail largely by who can afford it.

“Bail is not a nearly perfect system. Bail is a one-dimensional look at the risk,” said Judge Charles Margines, assistant presiding judge of Orange County Superior Court who oversees bail in the county.

Several counties in California already have adopted evidence-based risk assessments, a move experts hope will reduce the number of people locked up while waiting for trial dates.

If approved locally, Margines said, the pilot program would use a test to measure if defendants are low-risk and unlikely to skip town before or during their trial. Those eligible would be put in some form of supervision, such as GPS anklets, a curfew or reporting to a probation officer, depending on the judge’s decision.

“It’s not a one-size fits all system,” said Orange County Undersheriff Steve Kea, who oversees custody operations.

Hundreds of defendants are already released every month on their own recognizance by detention release officers when they are booked or by judges during trial. But the program under consideration would bring a test developed by criminal experts – instead of personal evaluations – to the process. The state is offering grant money to help pay for such programs.

“We believe (it) would be an improvement because it’s based on scientific models,” said Margines.

If the county assessment program proves successful, Margines said it could be considered for expansion to include more defendants.

Not everyone is happy to see it.

“They’re hurting the industry,” said Maggie Kreins, president of the California Bail Agents Association. “They’re also hurting the public.”

GETTING OUT

Bail is the method through which many people walk out of jail while awaiting trial, a type of insurance that incentivizes a person to show up to court.

How much a person pays in bail generally is set according to the type of crime charged. A defendant pays his or her bail – usually with the help of a bail company – with the understanding that the cash will be returned once the defendant shows up to court. A defendant typically pays 8 to 10 percent of the bond out of pocket, and that money is rarely returned.

If a defendant free on bail skips court, bail companies have an incentive to find them and bring them back to jail.

“Bail agents are part of the criminal justice system,” Kreins said. “We help ease overcrowding. We assure individuals go to court.”

Studies have shown, however, that the traditional bail system is flawed, and that people who can afford bail get to spend pre-trial time on the street while people who can’t afford it are in jail, Margines said.

Spending time in jail before trial tends to put pressure on defendants, Margines added, meaning those suspects are more likely than others to make a plea deal, more likely to plead guilty and, ultimately, more likely to serve longer sentences if convicted.

Using risk assessment, instead of cash, could change that dynamic.

A risk assessment tool, Margines said, would look at which defendants are likely to return to court and stay out of trouble without the financial burden of bail. Issues such as employment, drug use, criminal history and residency would be factored into the assessment.

The pilot program would be applied to people with no serious felonies on their record who are accused of misdemeanors and low-level felonies. Also, the program would not apply in cases where the district attorney is seeking a prison sentence, Margines said.

Sean Cook, president of the Orange County Bail Agents Association, agrees the bail system needs changes. But he says any new system should include financial incentives to show up in court.

“When people get released without repercussions, with a slap on the wrist, or without accountability to appear in court, I get concerned.”

With bail, companies take on the expense of looking for those who skip court. Without it, Cook said, local agencies will face that expense.

“We’re going to make multiple trips to their house if they abscond; we’re going to look for them in every address we have in file,” he said.

NOT SENTENCED

In Orange County, more than half (54 percent) of the 6,700 inmates in jail are being kept there without a conviction for the crime they’re charged with. They’re in because they are either ineligible or unable to post bond, Kea said.

It’s impossible to know how many of those people could get out if they wanted, but Kea estimates about 300 more beds in county jail would be available if the pilot program were implemented.

“That’s a pretty big swing for us, as far as managing jail beds,” he said. “So there’s some incentive to have a plan in place.”

It’s also a potential money saver for taxpayers. It costs about $118 a day to keep a person locked up in Orange County Jail. If the program translates into 300 empty beds a day, the annual savings could exceed $12 million a year.

Local court and sheriff’s officials are asking other affected agencies – probation, district attorney, health care and public defenders – to sign off.

“We don’t want to run a program like this if everyone is not on board,” Kea said.

The board of supervisors agreed Nov. 25 to apply for state funding. This year, state officials have set aside $50 million for recidivism and pre-trial evidence-based programs, Margines said. Orange County may be eligible for up to $600,000, which Margines said could pay for a “modest” start to the program.

Margines admits the program might have an impact on local bail bond businesses, but he said the scope would likely be minimal.

“It’s not going to destroy the (bail) system,” he said. “It’s just going to be a flesh wound.”