Guest Columnist

Discuss bail reform before making changes

A driver who failed a field sobriety test is placed in handcuffs. (Gazette Archives)
A driver who failed a field sobriety test is placed in handcuffs. (Gazette Archives)

Recently, editorial writers for The Gazette and the Des Moines Register were critical of the Legislature’s decision to terminate a pilot program for pretrial risk assessments in Iowa.

The program — which uses a computerized risk assessment to direct judges in determining if a defendant should be released before trial — will shut down at the end of the year. Moving to terminate this experiment was a wise decision. These staff writers don’t consider the negative impacts of continuing the program.

Based on the experience of other states, we already know what likely will happen. New Mexico implemented the same computerized risk assessment.

In the words of that state’s governor, Susana Martinez: “We’ve been working hard to crack down on a catch-and-release revolving-door criminal justice system, a problem that irresponsible interpretations and rules implemented by courts, and the … pretrial risk assessment tool have only aggravated. New Mexico implemented this pretrial risk assessment tool to devastating results.”

Given these alarming statements and experiences, Iowa’s lawmakers acted appropriately.

Des Moines Register writers also wrote that legislators made the decision to terminate the program, “with no chance for public comment.” They’ve got it backward. The court system and state agencies unilaterally imposed this public safety experiment on Iowa without following the required steps to change policy — seeking appropriate approval from our elected legislators and, ultimately, the governor. The Legislature’s move to end the experiment “rights” that original wrong.

Now, Iowans have the opportunity to have a real discussion about the risks of computerized assessments.

But it’s not just the public being asked to take the state’s word that this experiment is the best way forward. The program also has greatly reduced the type and amount of information provided to judges, and risks diminishing judicial discretion. (The computerized risk assessment recommends a limited set of options for release. This clearly undermines Article I, Section 12 of Iowa’s Constitution, which guarantees all Iowans the right to bail.)

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Making matters worse, at a time when our communities are facing a mental health crisis and an opioid epidemic, the computerized risk assessment takes neither mental health status nor substance abuse into account. This despite the fact that Iowa Code 811.2 explicitly requires judges to consider “mental condition” when determining conditions of release. That’s just common sense. Untreated mental health and substance abuse issues can increase the likelihood of re-offense and affect costly failure-to-appear rates.

Without providing judges this necessary information, the computerized program severely curtails judicial discretion by default. Shockingly, and all else being equal, this experimental program treats drug addicts who are habitual users and who are dependent on narcotic drugs the same as individuals who have never touched controlled substances. How is that fair to defendants or to Iowa communities?

This experiment also potentially denies defendants equal protection under the law. Both the U.S. and Iowa constitutions provide that all people similarly situated should be treated alike. However, under this experiment, half of Polk County defendants are arbitrarily placed into the computerized program, while the other half are put into the control group, using the traditional system. So two defendants who committed the same crime and are at equal risk to skip court may have drastically different pretrial release outcomes.

This is not fair, and it raises constitutional concerns. People are being treated like lab rats.

We can do better than relegating judicial discretion to a constitutionally questionable experiment. And we can start by having a truly open and transparent debate next legislative session that takes these known problems into account.

Only after we truly understand the risks of computerized assessments should we consider overhauling Iowa’s already-working criminal justice system.

• Doug Gross is an attorney at BrownWinick in Des Moines, which represents Lederman Bail Bonds.

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