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POLICING THE USA
Policing the USA

Justice system too costly for unconvicted: Column

The demand for money bail locks people up who may not deserve to be incarcerated — pushing some to pay the ultimate price

Cherise Fanno Burdeen and Bruce D. Beaudin
A demonstrator holds an image of Kalief Browder at a protest near city hall in New York. Browder was locked up at 16 and eventually committed suicide after being jailed for three years without a trial.

Our country’s pretrial justice system is broken.

As of 2014, more than 60 percent of people locked up in America’s jails had not yet been to trial. That means, on any given day, most people are stuck there, not because they have been found guilty of a crime, but because they simply can't afford bail. Jailing them comes at great cost — to them and our country. That’s why it’s time to replace money bail with common sense policies that are fairer and more cost-effective.

Too many people accused of low-level offenses such as shoplifting, trespassing and driving without a license, spend days, weeks or sometimes months behind bars — including many who are eventually found innocent. Unconvicted people account for a staggering 95 percent of the growth in the U.S. jail population from 2000 to mid-year 2014. Nearly half a million unconvicted men and women are in U.S. jails, costing taxpayers billions of dollars per year. Instead of directing finite resource toward things like schools, health care and infrastructure — or even lowering taxes — we are squandering money on pretrial detention that may actually detract from our long-term public safety.

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Connection to longer sentencing

Being in jail even three days — the amount of time it takes some defendants to make bail — can leave defendants who are at low risk of failing to appear in court or of being re-arrested pending trial at greater risk of such violations after their release. This is likely because incarceration is so disruptive. Even a relatively short period of detention can force people to drop out of school, or cost them their housing, their jobs and custody of their children, all before their day in court. The deaths of Kalief Browder (who eventually committed suicide after spending three years, unconvicted, awaiting trial in a New York jail) Sandra Bland (who was found dead in a Texas jail cell) and Jamycheal Mitchell (the young man who starved to death in a Virginia jail last year while awaiting trial for stealing about $5 worth of snacks from a convenience store) are tragic reminders of the most extreme consequences of our nation’s broken pretrial system.

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Money bail is also a significant, if little-recognized, driver of America’s mass incarceration crisis. Compared to similar people who are released, people detained for the full pretrial period are more likely to be sentenced to jail or prison and for longer periods of time. Research released this spring from the University of Pennsylvania now shows that there is a relationship between pretrial detention and longer periods of incarceration. Detained defendants were 13% more likely to be convicted and ended up with an extra 18 months tacked onto their sentences.

The case against money bail is not new.

Jamychael Mitchell's mother, Sonia Adams, sits surrounded by her family while looking at a photograph taken of Jamycheal when he was an infant.

Fifty years ago, Congress passed the Bail Reform Act of 1966, which hoped to stop the inappropriate jailing of people awaiting trial for non-capital offenses. By curtailing the use of money bail in federal courts, it aimed to treat defendants equally and spend less taxpayer money on incarceration. States were expected to quickly follow suit, passing similar policies to keep people accused of low-level violations out of jail. Had local and state lawmakers seized the momentum then and fundamentally reformed the front end of our justice system, perhaps we would not now be facing a mass incarceration crisis.

Alternatives to a money bail system

What has changed over 50 years is the evidence against money bail: It has become much stronger. In the past decade, a cascade of new data and successful reform programs has reinforced the principle that the decision to release defendants before trial should not be based on how much money they have.

Today, our criminal justice system has the ability to distinguish between high- and low-risk defendants, using evidenced-based assessment tools that are far more advanced than what was available to reformers in the late 1960s. The technical certainty of modern risk assessment stands in stark contrast to the gamble inherent in money bail. Under a money bail system, courts must guess an amount that they imagine will help released defendants keep their promise to appear in court. If they hope to detain someone they believe should not be out, they must also guess an amount they imagine will be out of reach. The facts show how poorly this model works: Too many defendants who are at low risk of failing to appear in court or of being re-arrested pending trial are locked up because they cannot afford money bail, while nearly half of defendants who are high risk are able to pay and get out.

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A growing roster of  jurisdictions has proven that the vast majority defendants will show up in court after little more than a phone call reminding them of their obligation. We also now have highly reliable supervised release strategies — conditions such as regular check-ins, curfews, travel restrictions or electronic monitoring — that yield good results for moderate-risk defendants.

Washington D.C. effectively eliminated money bail in the 1990s, and now serves as a model for states like Kentucky and New Jersey, which have made significant commitments to reform. While Kentucky hasn't completely eliminated the money bail system, the state has instituted strong alternatives that start with a risk assessment required for everyone who is booked into a jail. Those who are low risk generally aren't detained pretrial. Those who are medium or high risk may be released with substantial monitoring.

It’s time the remaining states do their part and amend laws and practices to empower local jurisdictions to replace money bail with risk-based alternatives that make release decisions safer, fairer and more effective. Until that happens, we will continue to punish the poor, enable the wealthy and waste tax dollars.

Cherise Fanno Burdeen is the chief executive officer of the Pretrial Justice Institute, a national organization working to advance safe, fair, and effective pretrial justice that honors and protects all people. 

Bruce D. Beaudin is a former senior judge appointed to the Superior Court of the District of Columbia by President Ronald Reagan, was the founding president of the National Association of Pretrial Services Agencies and the founder of the Pretrial Justice Institute.

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