As officials aim to reform what they described as a flawed system, Charleston County's bail-setting process next month will employ a new risk assessment that might allow more low-level defendants to get out of jail free of charge.
But the new tool, which divides the accused into six risk categories, also could drive up bail for those who pose a legitimate danger to the community.
The move comes on the heels of a study showing that people who pay money to get out of jail before trial are more likely to be re-arrested than those who get personal recognizance bonds. In 2015, the latest year for which complete data are available, 71 percent of those freed on bail ended up back behind bars or failed to show up in court, compared with 41 percent released on their own recognizance.
Those numbers are too high, said officials from the Charleston County Criminal Justice Coordinating Council, a group of local authorities and staff members leading the push.
“The current system does not serve our community well,” project director Kristy Danford said during an announcement at the county courthouse. “We can and must do better.”
Funded by a $2.25 million grant from the MacArthur Foundation, the plan is based on a Virginia process that seems to work there, the officials said.
But it comes with some doubts.
Ninth Circuit Solicitor Scarlett Wilson has spoken out on past occasions when defendants are released through seemingly low bail only to commit serious crimes while awaiting trial, sometimes resulting in death. Wilson, like other authorities, said the project’s goal is worthy: making sure the system doesn’t extend defendants’ stay behind bars only because they cannot afford to pay.
"I have a healthy skepticism about this, but I do think it’s something worth looking into,” she said. “It’s a different way of doing business, but I think it could be a productive way."
Bail must be set in most cases within 24 hours of an arrest, leaving authorities and judges little time to gather information useful for that decision. The law also gives defendants a presumption of release on personal recognizance unless their background or alleged offenses indicate that they might pose a danger to the community or fail to show up in court later.
Bond judges have long considered a defendant's ties to the community, family and employment, and they have often reviewed police reports and rap sheets. But they never had a "crystal ball" to gauge how people would behave after their release, 9th Circuit Public Defender Ashley Pennington said.
"They pulled a number out of the air," Pennington said. "There was no feedback loop built into the process to see how people did after the bond hearing."
In 2014 and 2015, 71 percent of defendants in the county had to pay to be released, the coordinating council said, and 96 percent of their bail amounts were greater than $1,000. But 76 percent of those who got out before trial in 2014 and 68 percent in 2015 were arrested again or didn't show up for court.
The system starting in January will assign points to a criminal defendant to determine their risk on a scale of 1 to 6. The characteristics of people that drive up their rating include the type of charge they face, their criminal record, past failures to appear in court, their family history and signs of drug use.
But risk level alone doesn't lead to a specific bail amount; the judge ultimately decides on the dollar total.
Risk assessors will interview defendants before their hearings to gather information and to offer a public defender for those who qualify. Pennington said lawyers from his office started attending the hearings in April, helping judges make the bail decision.
Charleston County Chief Magistrate Leroy Linen said bond judges have faced criticism when offenders free on bail end up committing violent crimes. That might continue, he said.
But he hopes that that the system will help free those who deserve to be free while making freedom more difficult for those who pose a danger.
"We pray that things will work better," he said, "and that we as judges, if we are criticized, that we can somehow justify it."
If problems arise, the point system can be tweaked. Wilson, the area's top prosecutor, said her office will watch for defendants who violate their release conditions and can ask judges to revoke bail.
Charleston County Assistant Sheriff Mitch Lucas, chairman of the council, acknowledged that the procedure is a departure from how things have long been done. But he cautioned against a popular belief that someone who gets arrested deserves to sit in jail. That's not how the American justice system should work, he said.
"As an old cop," he said, "I can tell you ... this is a giant step in this state ... to make things right."