The criminal justice system tends to move slowly. The time between a person’s arrest and sentencing usually stretches for months, depending on the charges, but where that time is spent depends mainly on whether the person can afford to pay bail.

An increasing number of jurisdictions, including here in Oklahoma, are now paying attention to the inequality and inefficiency this creates and taking steps to improve the situation. The Legislature should consider following the lead of other states and replace its money bail system with one that takes an evidence-based approach to risk and ends the unequal treatment of poor defendants.

Money bail creates a two-tiered system

The majority of people incarcerated in jails – 70 percent, according to national statistics – have not been convicted of a crime. In most cases, after a person is arrested, a judge sets a bail amount starting at several thousand dollars that the defendant must pay to be released as a guarantee that they will appear for their court date. If the defendant can’t afford to post bail or to purchase a bail bond (costing at least 10 percent of the bail amount), they will remain in jail until their case is resolved.

This means that whether a person is held or released while awaiting their day in court usually depends on their economic status. About 34 percent of people charged and awaiting trial remain in jail because they can’t afford bail. That can mean months of imprisonment without being able to work. For example, the average drug case takes 92 days to resolve.

The system of money bail effectively ensures that the people who spend the most time in jail are those who can least afford it. Even if they are never convicted of a crime, people who are incarcerated work less and earn lower wages than their peers after they get out. They can lose their jobs, lose custody of their children, and face enormous fines and fees that take years to pay off. It’s a stark example of our two-tiered justice system, in which those with money are treated very differently than those without.

“About 34 percent of people charged and awaiting trial remain in jail because they can’t afford bail. That can mean months of imprisonment without being able to work.”

It’s also a terrible deal for the cities and counties whose jails are filled with people charged with minor crimes. Across the country, at least $3 billion is wasted on holding low-risk offenders before their trials. Defendants who are detained longer may be more likely to fail to appear for their court appearances, to commit new crimes before their trials, and to offend again after their sentence. They also contribute to the jail overcrowding that has been a persistent problem in both Tulsa and Oklahoma Counties for years.

It doesn’t have to be this way. Pretrial release should be based on the risk that person poses to reoffend or to fail to appear for court, not their ability to pay.

An innovative approach in Tulsa County

Earlier this year, the Tulsa County Public Defender’s Office implemented a program to allow some low-risk defendants who can’t afford attorneys to be released on a personal recognizance bond – essentially a defendant’s written promise to appear in court. Through the program, the Public Defender’s Office recommends candidates who are likely to receive probation but can’t pay their money bail, and the District Attorney’s office screens them and submits them to a judge to sign off.

The process has so far resulted in 64 people released from the Tulsa County Jail, saving the county more than $50,000 in a little more than two months, according to Assistant Public Defender Jill Webb. The volume of cases flowing through the Tulsa County Public Defender’s Office suggests that the impact has considerable room to grow: In 2015, public defenders represented four out of five felony defendants and one in three misdemeanor defendants in the county – over 8,000 cases in total.

Risk assessments are gaining traction

Tulsa County’s new program could be used as a stepping stone to a more comprehensive and standardized approach that includes systematic assessment of risk. Dozens of jurisdictions across the country have integrated evidence-based pre-trial risk assessments into their release decisions.

One of the most common assessments, the Public Safety Assessment developed by the Arnold Foundation, analyzed a database of 1.5 million cases to identify the best predictors of future crime or failure to appear in court. Judges use the results of the assessment in place of bond schedules that set a bail amount based only on the charge. Low-risk defendants can be released and simply reminded of their court dates; defendants at high risk of reoffending or failing to appear may be denied pre-trial release or released under supervision.

The recent murder of Khalid Jabara in Tulsa provides a tragic reminder of the failure of our current system to adequately assess risk. The man accused of his murder had a long criminal history and, just a few months prior, had bonded out of jail while awaiting trial for an alleged hit-and-run that nearly killed Jabara’s mother. The Public Safety Assessment takes into account factors like “whether the current offense is violent” and “whether a person has a pending charge at the time of arrest,” both of which apply to the alleged offender. It’s possible that, had a standardized risk assessment been in place, he would have been denied bail altogether.

Studies show that releases based on risk assessments are just as effective for achieving public safety and court appearance as money bonds. In one county in North Carolina, the jail population dropped by almost 20 percent as the risk assessment was implemented.

An achievable step toward equal treatment before the law

The justice system favors those with money at every turn. The well-off can hire private lawyers with the time and resources to thoroughly investigate and try a case, while the 80 percent of defendants who rely on public defenders get a fraction of that attention from attorneys stretched to the breaking point.

Ending money bail would be a proven way to level the playing field at the beginning of the process. When properly implemented, it saves counties incarceration costs at minimal risk to public safety and – most importantly – brings the system a little closer to ensuring justice for all.