Brennan Center for Justice Dismantles a Crime Scarecrow, All in an Effort to Advocate for the End of Cash Bail in favor of Risk-Based Preventative Detention

In the latest study[1] from the Brennan Center for Justice to conclude that bail reform does not increase crime, we have to ask, are these researchers expecting anyone to take them seriously?

We are one of the main national advocates for the bail industry—we stroll the halls of state capitols and talk about bail.  And we don’t go around saying minor bail reforms, or even bail reforms in general, are going to create a noticeable spike in overall FBI crime numbers when we include things like non-pretrial crime, downgrading felonies to misdemeanors, cutting sentences, offering early parole, the breakdown of law and order in the streets, under-reporting, and mistrust of the police to name a few.  What we do say, and what the Brennan Center does not want to study, is that incentives increase the rates of appearance, decrease long-term fugitive rates, and should have a slight decrease in the amount of pretrial crime (which is a very small subset of overall crime).

Now, onto the point.

The Brennan Center says they are debunking the idea that bail reform increases overall crime.  This is the scarecrow they make.  First, they take overall crime statistics from our brethren at the Federal Bureau of Investigation.  Then, they somehow picked a variety of thirty-three bail reforms that they say were significant and exclude all others, including those that toughened the bail system like some of the recent legislation in Georgia.  Then, they compare the bail reform places to the non-bail reform places, and poof—by the magic of regression science, we conclude bail reform does not, at a level of statistical significance, increase overall crime numbers.

Wait a minute.  We were part of many of those reforms.  Let’s take the Colorado example cited.  As turns out, we were part of the team that negotiated the language in that bill, and when we sat in the offices in the ACLU of Colorado in Denver, that is when the concept for that bill was first discussed as something that everyone could get behind.  In fact, we worked closely with the ACLU of Colorado at the time to work on issues where there were common agreements and to oppose things where there were common agreements, like the vigorous opposition of the expansion of preventative detention policies in Colorado.  Thus, the entire point of that Colorado legislation was to find bail reforms where these truly were what we termed “sleeping on the park bench bails” where we might try to identify some releasable people who really didn’t belong there but in essence had nowhere else to go.  Does it surprise me that the Brennan Center found that sleeping on park bench municipal bonds legislation didn’t affect the overall crime trend in Colorado—well, let’s just say we would have been really surprised if it did.

On the methodology.  we'll just get right to the point—this is straight-up junk science.  You look at the St. Louis, Missouri “bail reform.”  The description is that prosecutors were limited in terms of only asking for bail in more serious felonies.  The problem is what the prosecutor asks for is irrelevant—the judge has discretion and often over-rides prosecutors and when prosecutors like George Gascon (CA) and others have policies of not asking for bail they are simply ignored by the Bench.  So, if we take a look at that St. Louis reform, can we say it was actually implemented?  This is but one example of how just using the term “bail reform” itself dooms this particular methodology.  Each bail reform is itself a judgment call and there is no way to estimate the individual impact of each bail reform in terms of what impact it had on crime, much less the overall trends.

The real question the Brennan Center needs to answer is what system of bail does it want to see in America while it dismantles the right to bail by sufficient sureties, i.e., while it continues to press against “cash bail”?  Let’s put some meat on the bones as we appear to be spilling ink like we have it to waste.

The Center on its website says it seeks to find “more equitable approaches to pretrial release and detention” than “money bail.”  The Center says it wants to find a system where “only those who genuinely pose a risk of fleeing or endangering the public are held in custody.”  It seems to us, unless we are missing something, that the Brennan Center is advocating for a system of risk-based preventative detention.  In other words, we are going to base detention in jail not on whether you ultimately post bond or not but instead on whether a person “poses” a [future] “risk” of endangering the public.

In fact, the Center praises in one report the Federal Bail Reform Act of 1984, that little act that increased mass pretrial incarceration by over 11,000%, as a success and made clear they like using future dangerousness as a standard as well[2]: “Exemplifying that trend, in 1984, Congress passed the Bail Reform Act, which authorized courts to detain people based on perceived risk to the community rather than a concern that the person might fail to appear in court. By the mid 2000s, at least 44 states and the District of Columbia had statutes identifying community safety as an appropriate consideration in bail determinations.”[3]

Instead, the Brennan Center’s experts ought of dust off the thoughts of Justice William J. Brennan, Jr. as to their proposed reformed system of risk-based detention, which, we'll go ahead quote for them starting at 481 U.S. at 755-756 in case they had forgotten:

This case brings before the Court for the first time a statute [Bail Reform Act of 1984] in which Congress declares that a person innocent of any crime may be jailed indefinitely, pending the trial of allegations which are legally presumed to be untrue, if the Government shows to the satisfaction of a judge that the accused is likely to commit crimes, unrelated to the pending charges, at any time in the future. Such statutes, consistent with the usages of tyranny and the excesses of what bitter experience teaches us to call the police state, have long been thought incompatible with the fundamental human rights protected by our Constitution. Today a majority of this Court holds otherwise. Its decision disregards basic principles of justice established centuries ago and enshrined beyond the reach of governmental interference in the Bill of Rights.

So, while we’re not out busy killing the Brennan Center’s reform concepts of risk-based preventative detention to protect community safety with the powerful words of its namesake, we are going to be calling them out when they put out studies that are nothing more than the building of a scarecrow and then dismantling of the same all to feed a system their namesake was against and who we agree with.  For the falsely portrayed, big-boasting political Willie Horton arguments of the bail industry are indeed the scarecrow, and they are the heroic dismantlers.  We do argue in some cases that the proposed reforms will increase pretrial crime and decrease appearance rates.  Because that does happen from time to time.

To the contrary, however, as it turns out it is not them but now we who are the dismantlers of the policies of mass pretrial incarceration driven by preventative detention and flawed predictions about future behavior and indeed it is they who now carry the flag of the bankrupt ideas contradicted by our hero, but apparently not theirs, United States Supreme Court Justice William J. Brennan, Jr.  We have fought to exhaustion against risk-based preventative detention for decades and really, really hard in the last decade.  And often alone.  And yet here they are—the Brennan Center fighting for risk-based preventative detention.

Throughout the world today there are men, women, and children interned indefinitely, awaiting trials which may never come or which may be a mockery of the word, because their governments believe them to be ‘dangerous.’ Our Constitution, whose construction began two centuries ago, can shelter us forever from the evils of such unchecked power. Over 200 years it has slowly, through our efforts, grown more durable, more expansive, and more just. But it cannot protect us if we lack the courage, and the self-restraint, to protect ourselves.

Justice William J. Brennan, Jr.

 

[1] Bail Reform and Public Safety https://www.brennancenter.org/our-work/research-reports/bail-reform-and-public-safety

[2] Freedom Denied: How a Culture of Preventative Detention Created a Federal Jail Crisis https://ambailcoalition.org/download/30/preventative-detention/6562/freedom-denied-how-the-culture-of-detention-created-a-federal-jailing-crisis.pdf

[3]  Challenges to Advancing Bail Reform https://www.brennancenter.org/our-work/research-reports/challenges-advancing-bail-reform