Bail Rules Should Not Be Changed

| by Nicholas Roberts

In a political era marked by extreme partisanship in both the Democratic and Republican parties, one issue that draws supporters from all sectors of the political spectrum is criminal justice reform.  

Acknowledgement is growing that U.S. prisons are overcrowded, as well as growing embarrassment that the U.S. imprisons a higher percentage of its population than authoritarian states like China and Russia.

This is a pressing subject for politicians and it encompasses many different issues, some of which have played a larger role than others in creating the "incarceration state."  One feature of the drive to reform the nation's criminal justice system is a fixation on the bail system, with many blue states currently in a push to abolish cash bail entirely.

While the bail system may not be perfect, trying to make bail reform the linchpin of a larger criminal justice reform is missing the forest for the trees.

The main argument for bail reform and against the existing commercial bail system is twofold. The first argument is that in an age of high unemployment and economic uncertainty, it is cruel and unfair to lock up low-level offenders who cannot afford to post bail before they await trial. At the same time, their stay in jail threatens employment and financial prospects. This is the argument made by Cherise Fanno Burdeen, executive director of the Pretrial Justice Institute, in a recent article in The Atlantic.

The second argument has to do with dangerous, violent offenders who are able to post bail and skip detention before trial. This was the impetus behind a new bail reform law in New Jersey which was passed in 2015, as well as one which has recently been entertained by Democratic Gov. Daniel Malloy of Connecticut.  

But bail reform has been attempted before, and ultimately the consensus returned to the idea that the existing bail system is flawed, but close to the best thing we have. That is likely to be the case this time around as well.

Why? Cost is the main reason.  

Under the new system being implemented in New Jersey later in 2016, those charged with indictable offenses will go to jail for 48 hours before their hearing, while police will likely have discretion to release low-level offenders.  

While the system sounds good in theory, an assignment judge said that successful implementation is going to require "extraordinary resources" like the hiring of 10-15 additional staff members, as well as the capacity to hold hearings for indictable offenses all seven days of the week.

Washington D.C.'s pretrial program is usually touted as a fairly successful model of bail reform, as Burdeen points out, but what is not highlighted is the fact that this program has a budget of around $60 million to supervise fewer than 6,000 defendants. An effort to replicate the results of that program would represent an incredible expense for any American metropolitan region.

The bail industry has existed since medieval England, and the modern concept of bail is based on the concept of risk assessment and how likely the defendant is to show up for trial. Commercial bail bonds have, time and time again, proven to be the most effective tool in ensuring the defendant shows up, and if the defendant does not show up then the bail agent pays the court. There is no such guarantee with public sector pretrial programs for release.

This makes "bail reform" an incredibly expensive proposition, while the commercial bail industry guarantees billions of dollars per year in risk. Do shady bail bondsmen exist?  Of course, as is the case in any industry.  But the bail system is not a fundamental issue that demands significant reform, particularly since the high cost of successfully "abolishing" bail may eventually induce states and cities to reverse themselves.

Instead, criminal justice reform should focus on areas where there are clearly glaring issues: the failed war on drugs as well as the cultures of racism, abuse and corruption in police departments and prosecutors' offices around the country.  Whatever rot has set into the criminal justice system, causing fewer and fewer people to trust it each year, the bail system cannot be pinned as a culprit.

Click here for the opposing view on this topic.

Sources: The Atlantic, Hartford Courant, / Photo credit: Handcuff Warehouse/Flickr

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