What Monopoly Can Teach Us About Cash Bail Reform: Recent Efforts, Pros and Cons, and the Community Response

"What has been demonstrated here is that usually, only one factor determines whether a defendant stays in jail before he comes to trial. That factor is not guilt or innocence. It is not the nature of the crime. It is not the character of the defendant. That factor is, simply, money. How much money does the defendant have?" - Robert F. Kennedy, August 4, 1964

Via www.amistadbailbonds.com
“Go to Jail. Go directly to jail. Do not pass go. Do not collect $200.”

Jail is one of the most-landed on spaces in a typical game of Monopoly.  However, for many Americans, Monopoly jail is the closest they will ever come to being behind bars.  The latest Department of Justice statistics available on the jail population in America places the jail incarceration rate as of 2017 at 0.229 percent of the U.S. population (based on the number of confined inmates in local jails per 100,000 U.S. residents at midyear).  Not all of those jail inmates across America are serving an active sentence for a conviction.  Although most defendants are entitled to conditions of pretrial release, many remain in custody throughout the pretrial period, the time between arrest and trial. Comparatively, in Monopoly, a player rarely remains in jail the entire length of the game.

According to the rules of Monopoly, there are four ways a player can get out of jail: rolling doubles, using the “Get Out of Jail Free” card, purchasing the “Get Out of Jail Free” card from another player, or paying a $50 fine before rolling the dice. Fortunately (or unfortunately, depending on your viewpoint) for people booked into actual jail, Rich Uncle Pennybags cannot ensure one’s release by merely showing up and presenting a get out of jail free card.

However, the purchase of a “Get Out of Jail Free” card and paying the $50 fine in Monopoly does draw some comparisons to bond and cash bail systems in place in many jurisdictions.  U.S. District Court Judge for the Northern District of California, Yvonne Gonzalez Rogers, made a note of this when she stated in Buffin v. City and County of San Francisco that the bail schedule in place “merely provides a ‘Get Out of Jail’ card for anyone with sufficient means to afford it.”  The concept of most pretrial confinement systems is quite similar to that of Monopoly; one must pay before being released.

Overview of the Conditions of Pretrial Release

State law is the equivalent of the rules of Monopoly.  Just like players of Monopoly refer back to the rules for guidance, magistrates, judges, and other officials authorized to release defendants before trial look to State statutes.  These statutes authorize various methods of pretrial release, commonly referred to as “bond.”

There are two types of bond: secured and unsecured. Secured bonds are similar to paying the $50 fine in Monopoly.  A secured bond requires a financial condition before a defendant is released from custody.  That financial condition can be met by payment of the bond amount by the defendant or authorized third party (typically a family member or friend) or can be secured via a guarantee of payment by a licensed commercial bail bonding company.  “Cash bail” is a standard form of and often the common terminology for secured bonds.  In contrast, unsecured bonds require no monetary conditions for release, but defendants are held liable for the full bond amount upon failure to appear in court.

In conjunction with bond, state law may authorize other additional conditions of release.  Terms of pretrial release vary by state, but the major forms are as follows: cash bail, commercial surety bond, property bond, other secured bond, unsecured appearance bond, conditional release, and personal recognizance.  North Carolina General Statute § 15A-534 serves as an example.  It provides judicial officials with five options for pretrial release conditions: (1) release upon a written promise to appear, (2) unsecured appearance bond, (3) conditional release into the custody of a designated third party that agrees to supervise, (4) secured bond (secured by cash, mortgage, or solvent surety), and (5) house arrest with electronic monitoring.

Despite these different options for conditions of pretrial release, judicial officials impose financial conditions of release more often than not.  To illustrate, a study of 2018 county-level bail conditions in North Carolina conducted by the UNC School of Government Criminal Justice Innovation Lab found that the statewide average for secured bonds was 67.6% in misdemeanor cases and 79.5% in felony cases.  In response to this overreliance on financial conditions of release state legislatures across the country have begun enacting changes to statutes and policies in an effort commonly known as “bail reform.”  In order to better understand the bail reform movement, a discussion of possible alternatives planned and enacted follows.

Jurisdictional Alternatives to Cash Bail

District of Columbia

In 1992, the District of Columbia court system began operating an alternative pretrial system without cash bail.  According to the Senior Judge of the District of Columba Superior Court, Truman A. Morrison III, ninety-four percent of defendants in the District of Columbia are released pretrial without using cash bail.  Additionally, eighty-eight percent of those pretrial releases made every court date.

Data from the Pretrial Services Agency for the District of Columbia states that ninety-eight percent of defendants charged with violent crimes remain arrest-free during the pretrial release period, i.e., do not commit another crime before trial.  All of these statistics are higher than the national average.

These above-average pretrial statistics are due in large part to the efforts of the Pretrial Services Agency for the District of Columbia.  The Pretrial Services Agency (PSA) is a federally funded agency that provides release recommendations, supervision, and services to defendants awaiting trial.  PSA includes a variety of programs that include drug treatment, mental health services, and referrals to a range of social services.  PSA emphasizes community partnerships with various justice agencies and community organizations as a way to build a bridge of support services for defendants under pretrial supervision.

New Jersey

New Jersey transitioned from a monetary bail system to a risk-based assessment system in January of 2017.  New Jersey’s risk assessment tool, the Public Safety Assessment, looks into nine risk factors.  Those factors are age at current arrest, current violent offense, pending charges, prior misdemeanor conviction(s), prior felony conviction(s), prior violent conviction, previous failure to appear in past two years, prior failure to appear older than two years, and preceding incarceration sentence.  A culmination of these factors leads to a defendant receiving three prediction scores: a “failure to appear” score, a “new criminal activity” score, and a “new violent criminal activity” score.

A defendant gets points for different factors.  Age and missed court dates are typical factors.  The points makeup a raw score that determines the defendant’s placement on a six-point scale called a “New Criminal Activity” scale from low to high risk.  The first point and the lowest ebb of the range, 1, includes defendants predicted to have a fourteen percent chance of committing an offense pretrial.  At the opposite end, point six, defendants placed there have a fifty-percent chance of committing a pretrial offense.  The data from the risk assessment tools do not specify when detainment is necessary pretrial, rather they are intended as an informational tool for policymakers and judges.

The practical step-by-step framework is as follows.  The Pretrial Services Unit prepares recommendations to the court based on the PSA risk assessment.  Then, a first appearance hearing occurs within 48 hours of arrest, where all parties involved have access to the PSA results.  At the first appearance, prosecutors have the option of filing a motion for detention.  If a detention motion is filed, a pretrial detention hearing occurs within three to five business days, where the prosecutor must demonstrate that no conditions of release can reasonably assure the public’s safety or that the defendant will return to court.  If there is no motion for detention, the judge can either agree with the pretrial services recommendation or state reasons for deviating from the recommendation.  Then the defendant is released with or without conditions.  The pretrial services unit monitors those released with conditions.  Conditions range from phone calls, office visits, to electronic monitoring and house arrest.

Colorado

Colorado discourages the use of cash bail and has adopted a risk assessment tool method similar to New Jersey.  The Colorado General Assembly recently passed a law that prohibits courts from imposing financial conditions of release for traffic, petty, and other low-level civil offenses. Traffic offenses involving death or bodily injury, eluding a police officer, circumventing an interlock device, or a civil offense with substantially similar elements to a misdemeanor offense do not fall under the law’s purview.  The bill does not prohibit the issuance of a warrant with monetary conditions of bond for defendants that fail to appear for court.

Additionally, Colorado recently enacted SB19-191 this past May, which requires courts to hold bond-setting hearings within 48 hours of a defendant’s arrest and sets limits on bond fees.

Alaska

Alaska is an excellent example of the fluctuating nature of bail reform efforts.  In 2016, Alaska passed substantial criminal justice reforms that included a revamped bail system.  This system operated under a risk assessment tool similar to that of New Jersey and even made certain misdemeanor offenses non-jailable.  However, Alaska, like many Monopoly players, quickly changed its strategy.  This past July, the 49th State, instituted House Bill 49 , which repealed and replaced the bail reform system that was put in place back in 2016. The full text and history of the bill is available here.

California

California became the first state to pass legislation to end cash bail ultimately, with Senate Bill 10 signed into law on August 28, 2018.  However, due to push back from the bail bond industry, the law has been put on hold and faces a referendum for voters to decide the issue in the upcoming 2020 election.

The U.S. District Court for the Northern District of California in the case of Buffin v. City and County of San Francisco, as quoted earlier, ruled in March that San Francisco’s cash-bail system violated the rights of indigent defendants and failed to promote public safety.  The ruling applied only to San Francisco but could be followed by other California courts moving forward.

Potential Pros of Bail Reform
  • Costs: Decrease jail population, which could reduce tax dollars spent on incarceration.
  • On any given day U.S. jails house, nearly 500,000 pretrial detainees at the cost of about $14 billion a year
  • Public Safety: Requiring financial conditions does not protect the public because, in some circumstances, a wealthy but very dangerous defendant can afford bond and be released to the community with no supervision.
  • Extensive pretrial supervision programs have meager rates of rearrests and failure to appear. In Mecklenburg County, more defendants have been released, but there has not been a significant increase in failures to appear (FTAs) or new criminal charges during the pretrial period.
  • For low-risk defendants, pretrial release may reduce the likelihood of future criminal behavior because they would not suffer from the collateral consequences of incarceration.
  • Reliance on monetary conditions of release has disproportionate impacts based on class and race.
  • Pretrial release alternatives bring a multidisciplinary approach.
Potential Cons of Bail Reform
  • Fear of future violence from defendant’s that are released pretrial.
  • Risk assessments are just tools and, as such, can be used for justice or injustice since relying heavily on risk assessments could be seen as reinforcing racially biased data.
  • Increasing the burden on an already burdened criminal justice system.
  • Costs of incarceration will be replaced by excessive and costly pretrial monitoring.
  • Mass surveillance will replace mass incarceration.
  • Data that informs current risk assessments comes from the current system, where the only other pretrial options are jail and personal recognizance.

○ Current data does not take into account how improvements in the pretrial process, such as court reminders, could impact the increase in court appearances.

  • Pushback from the bond industry, as seen in California.
North Carolina Response

Former N.C. Supreme Court Chief Justice Mark Martin convened the North Carolina Commission on the Administration of Law and Justice (NCCALJ) as an independent and multidisciplinary commission to investigate criminal justice issues in North Carolina.  The commission researched and focused on ways North Carolina could improve pretrial justice systems, such as the pretrial release system.  The NCCALJ recommended in its Final Report that North Carolina should revamp its current pretrial and bail system.  The North Carolina General Assembly has yet to pass legislation on the matter, but stakeholders in the criminal justice system have begun reform efforts.

District Attorney Offices, such as Durham County, are essentially promoting more prosecutorial discretion regarding which kind of cases prosecutors seek cash bail.  While prosecutors do not set pretrial release conditions nor bail amounts, prosecutors are called upon to offer the State’s opinion as to the conditions of release (i.e., whether the bond should be higher, lower, or unsecured) at a defendant’s initial appearance.  According to a News & Observer interview, Durham County District Attorney Satana Deberry stated that her office’s “internal pretrial release policy favors releasing people from jail on a written promise to appear on most misdemeanor and lesser felony charges except for those that involve domestic violence or physical harm to another person.”

Mecklenburg County has implemented the Public Safety Assessment (PSA) pretrial risk assessment tool utilized in New Jersey.  A recent report from the MDRC Center for Criminal Justice Research evaluated the impact of implementation of the PSA in Mecklenburg County.  As W.R. Kenan Jr. Distinguished Professor at the UNC School of Government Jessica Smith notes the big takeaway is that “Mecklenburg released more defendants but did not see a significant increase in failures to appear (FTAs) or new criminal charges during the pretrial period.”

North Carolina Attorney General Josh Stein has initiated ongoing roundtable conferences with criminal justice stakeholders across the state to discuss ways to improve the current pretrial release system.  Professor Smith and the UNC School of Government hosted a Criminal Justice Summit this past March, where various stakeholders in the criminal justice system offered multiple means by which the system can improve.  A full report from the summit can be accessed here. Some of the reform proposals included:

  • Statewide funding for pretrial programs, with no fees charged to defendants.
  • Allow defendants to deposit with the court an amount similar to that currently paid to a commercial bond dealer.
  • Earlier involvement of counsel in bail and pretrial proceedings.
  • Funding for defense investigators before the first appearance.
  • Allow defense counsel to calendar bond hearings.
  • Increased mental health and substance use programs.
  • Elimination of commercial bail bonds and/or financial conditions.
  • Invest more time at the first appearance to determine the appropriate conditions.
  • Require judicial officials to record the reasons for imposing secured bonds.

For those interested in learning more about ongoing bail reform efforts in North Carolina, the UNC School of Government’s Criminal Justice Innovation Lab website is an excellent source.  Furthermore, Jessica Smith, the Criminal Justice Innovation Lab Director and W.R. Kenan, Jr. Distinguished Professor of Public Law and Government, authors blog posts on the North Carolina Criminal Law blog that are extremely informative, data driven, and frequently updated concerning bail reform efforts.

Conclusion

Unlike most experiences with jail, going to jail in Monopoly can be a good thing. In Monopoly jail, one can fully participate in every aspect of the game.  While remaining in a risk-free and rent-free spot, Monopoly players can continue to buy and sell property, and most importantly, collect rent.  Staying in jail in Monopoly saves most players money since it keeps them from paying anything while still allowing them to collect rent and sell property.  Now, if it is early in the game, most Monopoly players will want to get out of jail as soon as possible to collect more property.  When someone wants to get out of Monopoly jail, the procedures and or fine for doing so are the same for everyone.  While actual jail may never be as beneficial as being stuck in Monopoly jail, money still plays a significant role in both release from actual jail and Monopoly.

Wyatt Bland
About Wyatt Bland (6 Articles)
Wyatt is a third-year student at the Campbell University School of Law and currently serves as the Editor-in-Chief of the Campbell Law Observer. Originally from Goldsboro, North Carolina, Wyatt enlisted in the North Carolina Army National Guard as a Supply Specialist while in high school. He went on to graduate at the top of his class from the U.S. Army Quartermaster School. Despite being a first-generation college student, Wyatt earned not only one, but two Bachelor’s degrees in both Political Science and History at East Carolina University. Before starting law school, Wyatt’s passion for public service grew as he worked full-time at North Carolina's 3rd Congressional District Office for the late Congressman Walter B. Jones. Wyatt is active on campus and currently serves as the Managing Partner for the Veterans Pro Bono Project, a 3rd Year Student Bar Association Representative, a North Carolina Bar Association Student Representative, Community Outreach Chair for the National Security and Military Law Student Association, and a Student Ambassador. Wyatt has previously served Campbell Law as the Vice President and 1st Year Representative of the Student Bar Association. Additionally, he is an active participant on Campbell Law’s softball team as well as in the Wake County Bar Association’s Basketball league. During the summer after his 1L year, Wyatt externed with the Office of the District Attorney for New Hanover and Pender Counties. During the Fall semester of his 2nd year, Wyatt served as a Legal Extern in the Office of the Staff Judge Advocate for the U.S. Air Force’s 4th Fighter Wing at Seymour Johnson Air Force Base. This past summer Wyatt prosecuted cases under the Third Year Practice Rule with the Wake County District Attorney’s Office, completing 15 trials. Wyatt currently is interning with the United States Attorney's Office for the Eastern District of North Carolina. Wyatt's interests are in criminal law as well as national security law.