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Public Sector Pretrial Justice: Guilty Until Proven Innocent

Tuesday, February 10, 2015

Guilt or no GuiltThere has been a lot of chatter in the criminal justice system recently about the topic of bail reform.  From New Jersey to New York to California, courts are looking for faster, easier ways to release defendants from jail.  Many of the public sector supporters of bail reform claim that the current system of “money bail” which requires defendants to pay money for their release is unfair and racially/economically biased.  In other words, those with money get out and those without money stay incarcerated.  On the surface this argument can make even the most seasoned criminal justice professional take pause and think, but once you examine the details more closely you can begin to see that this form of taxpayer funded pretrial justice is not justice at all but rather a potential civil rights nightmare that presumes guilt before innocence.

Before we get into that discussion, it is important to quickly dispel two inaccuracies of the bail reform movement.  One of the most commonly used arguments made in favor of bail reform and against so called money bail (the commercial bail bond industry) is that the jails are overcrowded because people can’t afford to pay for a bail bond.  This train of thought coupled with the mantra that money bail favors the rich and hurts the poor is why the bail reform movement has become the anti-commercial bail movement.

That aside, there are a couple problems with this overcrowding concept.  First, it is important to understand that the purpose of pretrial release is not actually about “release” it is about “appearance.”   So to make a claim that bail reform that is solely focused on releasing defendants is incomplete and myopic to the broader conversation of pretrial release.  In order for any reform to succeed it must address the true purpose of what you are trying to accomplish.  With pretrial release, you have to look at which form of release is best at ensuring defendants appearance at court…not which form of release is the quickest at letting them out.  Ultimately the guarantee of appearance is why someone is released in the first place.  

For purposes of this next point, let’s assume that all forms of release equally ensure appearance (even though they don’t) and focus on just the “release” part of the argument.  Public sector pretrial supporters claim that commercial bail is the roadblock to release for most.  People are stuck in jail because they can’t afford a bail bond.  We have all heard that argument.  However, if you look closer you would find quite the opposite is true.  In fact, bail bondsmen actually make release easier.  Commercial bail requires the defendant and family to pay only 10% of the bail amount (and even offer payment plans for them to do so).  In this way, release is actually more affordable with commercial bail than without.  This is why non-commercial bail states like Kentucky, Illinois, Oregon and Wisconsin all still have crowded jails.  Bail reform efforts have been so strong in those states that they have unknowingly removed the only responsible and effective consumer friendly alternative to having to pay the full amount of bail.  Bail reform’s promise of fairness doesn’t seem to be panning out as it was promised.

One of the ways that public sector pretrial programs are trying to differentiate themselves in the bail reform discussion and show their effectiveness as a better alternative to commercial bail is their ability to place conditions on the individuals that are in their programs.  These conditions can include a wide range of things including drug and alcohol treatment programs, anger management courses, inclusion zones, exclusion zones, electronic monitoring, curfews, etc.  Public sector pretrial programs work hand in hand with probation departments in supervising and managing these “pretrial” defendants in the same way that “convicted felons” are managed.  Beginning to see the problem with this?  In the rush to expand its own public sector pretrial programs, remove the private sector bail industry and make bail supposedly more “fair” for defendants, the public sector has forgotten a very important aspect of not only our criminal justice system, but our society as a whole…a person’s civil rights.  By imposing release conditions on an individual who has not been convicted of a crime and who is supposed to be presumed innocent until proven guilty seems to me to be the definition of unfair and unjust.

If bail reform is to truly have the outcome of its intentions, than public sector pretrial programs need to stop focusing on being an alternative to commercial bail and abandon its mission of trying to eliminate it.  Instead the bail reform movement must look for the “best” and most “fair” solution possible even if that means the inclusion and potential expansion of commercial bail as a reform tool.   It is clear that the ills of the criminal justice system are not going to be solved with a single silver bullet or a single public sector program.  In fact, it is clear that both the private and public sectors are going to need to innovate and expand their capabilities to best serve the system and the public all the while ensuring true fairness and effectiveness.  That in my opinion would be good reform; that would be fair reform.

Posted by: Eric Granof

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