US Civil Rights Commission Misses the Boat on New Cash Bail Report

US Civil Rights Commission Misses the Boat on New Cash Bail Report

The U.S. Civil Rights Commission undertook a multi-year study on the problems of “cash bail” in the United States.  That report was published today.  Unfortunately, as one commissioner pointed out, the report is simply a rehash of old arguments by activists that are self-interested in the flow of federal grant money to line their own pockets.  The VERA Institute, as one commissioner pointed out, stands to financially benefit from the very policies and programs that are proposed as solutions in the report.

The report is a failure on many fronts.

REPORT: The Civil Rights Implications of Cash Bail

What struck us the most, however, is that the U.S. Civil Rights Commission cites the federal government as a key example of successful pretrial reforms because the feds ended cash bail.  The Commission, however, makes no mention of the fact that the elimination of monetary bail in the federal system has had a negative impact: the pretrial detention rate is 72% without cash bail today versus the pretrial detention rate of 24% when the cash bail reforms began in 1983.

Why did the commission not mention this?

Simple, they don’t want to point out the President of the United States for years advocated for and supported the elimination of cash bail and the building boom of federal prisons that occurred thereafter.  It was the elimination of monetary bail in the federal system that caused this, a generation of mass incarceration at the federal level.  There is zero doubt about that.  And there is no answer to that.  The Commission claims they want to dodge partisanship, but if they do, why can’t they admit a simple thing—that both parties failed at the federal level and that the original language from the Federal Judiciary Act of 1789 deleted in 1984 should be re-inserted into the federal code.

Instead, the Commission points out that the U.S. Department of Justice, the most pretrial incarcerating prosecutorial agency in the entire world, is going to instruct states through grant programs how to fix their cash bail systems.  Because that is going to make a lot of sense.  The U.S. Department of Justice, where you have a 28% chance of getting out of jail, and, if you do, a 100% chance of being supervised by an arm of the very state that seeks to prosecute you is going to bring liberty.

President Biden, the Attorney General, and the Commission have zero credibility on cash bail reform until they answer one simple question: did it work at the federal level?  They are telling the world that it did when the facts tell otherwise.  The elimination of private bail at the federal level lead to a generation of mass incarceration over which then-Chairman Senator Biden presided over for years.  Why not call on the federal government to fix it?  A return to bail and stop seeking to detain ¾ of the “innocent” without bail.

Further, many commissioners noted the shotty research that formed the basis for the report.  In particular, the report missed the only peer-reviewed article on the Chicago System, which clearly showed that pretrial crime and failures to appear in court increased.  Why mention that?  In addition, many of the studies cited the report were never published and have since been debunked (example, Mike Jones’s study of the Jefferson County, Colorado system).  The fact is, there have been major trends in pretrial changes over the last decade, but the report uses research from the 1990s and 2000s to make the case for alternatives to bail.  There is no updated research on this topic, largely because the Obama administration ended the reporting process at the BJS level that required the largest jurisdictions to submit their pretrial data for analysis.  Of course, it showed that surety bail was the most effective form of release, which is likely why the administration doesn’t want to keep replicating the report.

Another key unanswered question—60% of persons in jail have not been convicted.  Good statistic.  But how many have prior charges and prior failures to appear in court, which is what judges are supposed to look at?  The answer is many.  One study found that the average defendant who fails to post bail has ten prior strikes against them, a combination of felony arrests and failures to appear in court.  But, why let the facts get in the way?

The U.S. Commission on Civil Rights recycled old, tired bail reform talking points that were best practices at the time an Illinois Senator was sworn in as President.  This report completely fails to describe what has occurred in the last five years much less the last decade and failed to cite any of the numerous contrary reports that have demonstrated succinctly that the end money bail movement has failed.

Unfortunately, taxpayers will be getting a nice bill for a report that would be more apt for use in the water closet.


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