Some musings about bail: Part 2, Why the system is broken and how to fix it


Part 1 of this post presented an overview of the bail system in the U.S.

By all accounts, the present system of pre-trial release and confinement is broken. Too many accused individuals who pose little immediate threat to self or the community sit in jail awaiting trial. Too many individuals who need to be in a secure residential treatment facility for addiction or other mental illness sit in jail or are released, frequently recidivating.

Releasing some accused individuals on personal recognizance or in the supervised custody of another individual or institution works well for a substantial number of arrested persons, e.g., those with steady employment who have no record of criminal activity, non-appearance in court, etc. Increased utilization of monitoring through the use of ankle bracelets might expand the number of accused for whom one of these options is appropriate. Advantageously for the taxpayer, these are the lowest cost alternatives to pre-trial incarceration and therefore worth using as often as appropriate.

The criminal justice system should develop algorithms to determine the factors that best indicate whether an accused should (1) be incarcerated until trial or sent to a secure residential treatment facility; (2) be released on his/her own recognizance; or (3) released into the custody of another person or institution. Some researchers are currently developing such algorithms, working hard to eradicate any gender, racial or other illegal bias from their proposed algorithm. Once adopted, an algorithm should be constantly improved by comparing predicted to actual outcomes. Outcome based algorithms have proven more effective than physician judgment in selecting the best treatment protocol for a growing number of diseases and other medical conditions. Similar success is likely achievable in the criminal justice system if the system relies upon algorithms rather than judicial discretion. Some U.S. jurisdictions have already begun to move in this direction.

Bail tends to be the last resort for the accused who attempt to be released from pre-trial confinement. Consequently, the American Civil Liberties Union and others concerned about equal justice for all criticize bail on a number of counts:

1.     Bail disadvantages the poor. This criticism is valid and inescapable in a system that requires a person have some financial or real property assets in order to be released. Good data on how many poor there are for whom bail is their best if not only option for release from pre-trial confinement and who are unable to afford bail of even $1000, that is, good data is lacking on the actual extent that bail disadvantages the poor.

2.     Bail disadvantages the houseless. This criticism is also valid. The houseless often lack someone willing or able to stand surety. For houseless persons who suffer from addiction or other mental illness, bail is inappropriate but too often the only option for pre-trial release because the system has too few secure residential treatment facility beds.

3.     Bail discriminates against minorities. This criticism is also valid because poverty directly correlates with minority identity. This criticism is also valid because disproportionate numbers of minorities are accused of crimes, resulting in higher apprehension and incarceration rates.

4.     The bail bond industry results from privatizing an important aspect of the criminal justice system, i.e., ensuring the accused appears in court when required while not keeping those whom the justice system presumes to be innocent in unnecessary pre-trial confinement.

The first three criticisms are actually criticisms of the criminal justice system, not of the bail bond industry. The criminal justice system offers no alternative to bail for the poor or the houseless. We and our governments at all levels have failed to enact laws that do not discriminate against the poor and the houseless. Remedying this failure is a social and governmental responsibility, not the responsibility of the bail bond industry.

The fourth criticism highlights an even more fundamental problem. Privatizing most bail means that bond companies in order to survive must operate at a profit. A bond company would quickly go bankrupt if it wrote bonds for persons without surety or valuable assets. Such a system inherently discriminates against those with no assets or no one willing to stand surety.

A second fundamental problem with the criminal justice system compounding inequities introduced by bail is that the system almost never affords the accused their right to a speedy trial. Prosecutors and public defenders are overwhelmed with cases. The indigent and others who cannot afford an attorney must rely upon an overworked, underprepared attorney who would prefer to plead a case to trying it. From my observation, public defenders give arguing about pre-trial release and bail even less attention and preparation than they do seeking a plea deal. Alternatively, persons with private attorneys have large incentives to postpone a trial as long as possible. Witnesses may become unreachable, memories of all potential witnesses fade with the passage of time, and the longer a trial is delayed the longer a guilty person will enjoy his/her freedom, presuming the person has found a path to pre-trial release. Court dockets are overloaded; judges appreciate plea deals helping to lighten their case calendar. In short, taxpayers aver they want criminal justice but are consistently unwilling to fund a system able to deliver fair, speedy trials, unintentionally increasing the system’s dependence on the bail bond industry.

Monetary bail is far from perfect. I, for one, see no viable alternative. Additionally, money bail is a constitutional right of the accused. Eliminating monetary bail would require a Constitutional amendment. We can, however, improve the system by adequately funding the criminal justice system and improving other options for pre-trial release (e.g., own recognizance and providing an adequate number of beds in secure residential treatment facilities).

The sad truth is that we as a society care too little about those ensnared, rightly or wrongly, with our criminal justice system. Furthermore, society often desires vengeance rather than justice, additionally impeding meaningful reform.

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