Public Demands New Direction on Criminal Justice: Enforcing the Law and End Get out of Jail Free for Violent Defendants

A decade ago, when the “end cash bail” movement began, I agreed to oppose it because I thought it was entirely bankrupt from a civil rights perspective and nothing short of ridiculous – wrought with exploding legal landmines as a matter of jurisprudential theory.   I also thought if the public actually knew what was being proposed, they probably wouldn’t like it.  But when the economy is booming, crime is low, there’s no pandemic, and we are at the back end of generational gains in crime control and crime rates, criminal justice was the last thing on anyone’s mind.  Selling the need for criminal justice had become more difficult than opening a gas station next to a Tesla dealership.  As the public was asleep at the wheel, smart policies had reduced crime to the lowest point in a generation.  During the same time, some not-so-smart policies unnecessarily caused mass incarceration.

Then, a period of massive reform began.  The “get out of jail card” movement was in full swing, complete with black box computerized pretrial risk assessment tools built and fueled by ex-hedge fund millionaires and a litany of billionaire funded organizations.  I would argue that movement has come to an end.  As former Queens New York District Attorney Jim Quinn pointed out, New York City was able to undo a generation’s worth of crime decreases in a matter of two years[1].  That is astounding.  So would the public go along with this concept that when it comes to criminal justice and policing, we are just going to live and let live?

The two key arguments I have heard and opposed over the years are that we need to take it easy on low-level defendants, and we need to eliminate bail.  While I strongly agree with the idea that there has been unnecessary mass incarceration (driven by an increase in preventative detention and those pesky risk assessment tools), that there continue to be racial disparities, and that often the system is arbitrary, the idea that we can simply dismantle the system entirely is a recipe for chaos and vigilantism.

Now, new polling shows the public is absolutely with me.  The public wants the law enforced when it comes to so-called “low-level” offenses.  71% of voters, according to the Harvard Poll, agreed that, “the police should enforce laws for minor offenses like shoplifting and subway fare jumping.”  That includes 65% of registered democrats.  And 61% of voters want candidates discussing the solutions to the crime problem in the next election cycle[2].

Second, when it comes to bail reform, there is no doubt the public is favor of bail and against eliminating “cash bail.”  Only 25% of voters are in favor of getting rid of bail (21% republican, 29% democrat).  25%!  And yet legislators continue to say, end cash bail.  Really?  That’s not what voters want.  It proves once again that the “end cash bail” slogan would be the equivalent of saying we need to “end free speech,” but then run legislation to increase first amendment freedoms.

The same Harvard poll also showed one other key fact—75% of voters are in favor of violent defendants having to post bail—in other words, 75% of voters are against get out of jail free cards for anyone charged with a violent offense.  That would make sound public policy, probably, which is why several states, including Texas[3], Colorado, Georgia[4] have laws against get out of jail free cards for violent defendants.  Sure, judges can pull a “Denver” and issue a $1 bond to prove to legislature they got it wrong, but legislators know that a $1 bond would never be found to reasonably guarantee the appearance of a defendant in court if that issue ever went up on appeal.  I can hear the Colorado Court of Appeals now: “The transit fare far exceeds the so-called financial guarantee imposed, and thus it most certainly is not ‘reasonably calculated’ to ensure the appearance of the defendant as required by Stack v. Boyle, 742 U.S. 1 (1951).”

Third, judges are mad too and tired of the political concepts being smashed like potatoes into the new criminal justice policy.  Judges get to deal with the new nebulous concepts directly where oar meets water.  In fact, one judge in New York has compared the New York bail reform statute as akin to navigating through the lines of a Grateful Dead song, no doubt under the influence of some varying intoxicants, invoking the lines from the classic song Box of Rain to justify a bail setting in court.  Yes, as the Washington Post cleverly points out, the judge would have been more on-point to use lines from Truckin’ since it contains the story of the Dead having to arrange bail for a drug bust in New Orleans[5].  But one thing is for certain, when it comes to tinkering with judicial discretion in the setting of bail, the judges in New York and elsewhere are so angry that they are like a dragon with matches, loose on the town—indeed, it’ll take a whole pale of water, just to cool them down!

The public has had it, the judges have had it, and policy-makers should take note.  This is not about hard on crime, soft on crime.  It’s pretty simple: the laws must be enforced, and that is what the public wants, and they don’t really care if you call it “low-level.”  They understand bail, they understand get out of jail free cards (there’s a monopoly app now), and they oppose it.  So, as policymakers and people who care about freedom and justice and civil rights, we must also redouble our efforts to make the system more fair, achieve better justice, and reduce racial disparities.

The public has spoken—it’s time for us to listen.

[1] https://manhattan.institute/article/new-report-analyzes-the-effects-of-new-yorks-2019-bail-reform

[2] https://dallasexpress.com/national/most-americans-say-cops-shouldnt-ignore-minor-offenses/

[3] https://capitol.texas.gov/BillLookup/History.aspx?LegSess=872&Bill=SB6

[4] https://www.legis.ga.gov/legislation/57545

[5] https://www.washingtonpost.com/nation/2023/07/31/judge-grateful-dead-bail-reform/