by: Jeffrey J. Clayton, Policy Director, American Bail Coalition

In a recent column that appeared in a major national publication entitled, “Justice System Too Costly for Unconvicted,” authors Cherise Fanno Burdeen and Bruce D. Beaudin wove a weak factual case into a litany of national narratives, ultimately concluding that “Our country’s pretrial justice system is broken.”  Yet, in painting the system of “pretrial justice” as wrecked, the authors fail to elucidate the effects of moving to their alternate system.  Their bi-polar system of bail — either outright release or preventative detention with no bail — would precisely mimic the federal system or the Washington, D.C. system in every jurisdiction in this country.  It is this very system that both defendants awaiting trial (the “unconvicted”) and taxpayers cannot afford.

First, the idea that masses of “unconvicted” individuals are in jail merely due to their inability to post bail is largely false.  Financial bail conditions are rarely set in this country for anyone with a previously clean criminal record.  While the authors simplistically assert that a majority of the persons in jail pending trial are there because they cannot afford bail, the reality is exactly the opposite.  Statistics show that the vast majority of these defendants are being held due to non-financial reasons unrelated to money bail.  That is, they are serving a sentence on another case, there is a probation or parole hold due to an alleged violation, or any number of other administrative or legal holds.  In fact, in a study of the Los Angeles County jail system conducted by the ACLU, 88 percent of those in jail pending trial cannot bail out of jail during the pendency of their cases due to non-financial holds.  As for being “unconvicted,” judges by law are required to look at a defendant’s prior criminal history — which is also precisely what “risk” models heavily weigh.  In other words, if they did it before, they’ll probably do it again.  That’s what Governor Dannel Malloy discovered when he wanted to switch Connecticut to the model advocated by Burdeen and Beaudin.  Of “unconvicted” defendants who were being held on a bail of $20,000 or less, 78 percent had three or more prior convictions, while 60 percent had at least one prior felony conviction.  Judges in that state and throughout the nation consider these factors and rightfully so – something backed up by the authors’ science of risk assessment.

Further, the advocates call for the expansion of preventative detention and moving to the federal system.  However, this will actually serve to keep more persons in jail, while creating unsustainable costs for local governments.  Experience with the federal system over the last 32 years proves this point.  In fact, the ACLU made this exact argument in opposition to the Federal Bail Reform Act of 1984 and subsequent constitutional litigation: that expanding preventative detention would dramatically expand pretrial incarceration.  And it did—the federal criminal justice system in 2010 incarcerated 64 percent of all defendants arrested with no possibility of bail, which was an increase of 53.4 percent between 1995 and 2010.  Detention at this level would bankrupt every state and local government in our country.  Thus, the often quoted passage from U.S. v. Salerno that liberty should be the norm and detention the “carefully limited exception” is not the reality in the federal system—the very system Burdeen and Beaudin are encouraging policy-makers to adopt.  Plus, when someone is preventatively detained, there are additional costs: the prosecutor has to prove risk of flight or danger by clear and convincing evidence at a hearing. Also, preventative detention triggers speedier trial requirements that make it more costly for police and prosecutors to resolve criminal cases.

In addition, these authors have advocated for years, paraphrasing Robert Kennedy, that defendants pending trial should be released and then “supervised” in the community as an alternative to posting a bond.  In the District of Columbia, the price tag on that supervision and evaluation of defendants is $62 million annually.  The results are not particularly persuasive given the cost.  In 2015, 12 percent of defendants failed to appear in D.C. and 27.9 percent of those on supervised release in D.C. were re-arrested in D.C., Maryland or Virginia.  It is questionable whether justice is better served under that model.

Regarding the idea of computerized risk-assessments, scholars have recently called into question whether these instruments are as predictive as they claim and if they are race-neutral.  In one recent study of a nationally-used risk assessment, researchers found that it was only able to predict the committing of another violent crime 20 percent of the time.  On the question of race-neutrality, one researcher concluded that controlling for other factors, the risk assessment in question classified African-Americans as riskier 77 percent of the time and predicted that African-Americans were 46 percent more likely to commit a crime of any kind.  These risk assessments become the de facto key to the jail door.  This issue becomes of paramount importance when the question in the new system is not how high a person’s bail might be set (at least allowing for the potential of a release) but instead, whether they are to be allowed bail at all.

Regarding the use of money bail in the system, former U.S. Solicitor General Paul D. Clement recently wrote in a pending case, “Bail is a liberty-promoting institution as old as the Republic.”  To abandon that system entirely as these authors want to do is to ignore the history of the Eighth Amendment, subject many more defendants to either detention without bail and supervision, and cost state and local government billions of dollars in the process for no better results.  That does not frankly sound like much of an advancement in “pretrial justice.”

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