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Deconstructing the Bail Reform Debate

Freedom comes at a high price for those who are held for bail they can’t afford. This is so much so that many who are innocent of what they are charged with find it a better deal to plead guilty to a crime they didn’t commit rather than waiting in prison for weeks, or even months, before arguing their case in court.

Clearly this is a problem, that two people can be charged with the same crime, and the wealthier of the two just write a check and be set free, while the latter can lose months behind bars awaiting trial, or simply concede that they committed a crime they are innocent of.

There is no obvious wholesale fix to this dilemma, though, and every angle has its valid concerns. Different states have been working to address this problem in their own ways. Below, we’ll discuss the proposed and attempted solutions recently made.

New Jersey’s Bail Reform and Speedy Trial Act

New Jersey is attempting to address this problem with the Bail Reform and Speedy Trial Act which went into effect. The bill, well intended, has had mixed responses.

Some of the most significant changes made in this bill include:

  • Prosecutors being able to request that a defendant be held without bail pending trial, should a judge determine that they are unlikely to return to court or pose a serious risk to the community.

  • Drastically reduce cash bail for those who are charged with crimes. Instead, allowing judges to establish different release conditions that are based upon the perceived risk posed by the defendant.

  • A “Public Safety Assessment” computer program will consider the nature and seriousness of the crime as well as the defendant’s adult criminal history to provide a risk assessment for the judge to use in determining if a defendant should be detained without bail, or released pending any further proceedings.

  • Prosecutors who seek a pre-trial detention are now required to reveal more of the evidence that they have gathered against the defendant earlier on in the case.

  • Those who are charged by summons, which is a decision now made with police, are not eligible for a pre-trial detention or release with conditions. The majority of defendants are to be released on their own recognizance. Sometimes this is with conditions such as electronic monitoring to “geo-fence,” to monitoring the adherence, to avoiding specific areas where gang-related crime rates are higher.

Those against the bill include Newark city’s Mayor Ras Baraka, who publicly stated that the bail reform allows for more criminals to be allowed on the street, creating more victims.

However, those in support of the bill argue this to be a moot point in that the Public Safety Assessment software -- taking into consideration the age of the defendant at the time of the alleged offense, whether the defendant has any past convictions and/or failures to appear in court, whether the offense was violent, or separate pending charges -- can be used to effectively mitigate dangerous offenders being released.

Texas Bail Reform

Similar to New Jersey, Texas lawmakers pushed legislation forward to reform the bail system in the Lone Star State in March. The grievances with the standing system were the same as those addressed in New Jersey, as well as California; the system currently leaves the poorest residents in the state to wait in jail until their court date arrives. This is argued as an unnecessary upending of the defendant's lives, and a waste of taxpayer dollars.

While there is weight in arguing for more effective bail systems simply for the effort of not punishing innocent people for being at the wrong place at the wrong time by coincidence, the financial effects carry significant weight, as well. The Texas Judicial Council reported that some counties spend over $900 million a year to imprison people awaiting their court date.

In the specific case of Texas, the same report notes that three out of four people in Texas jails have not been convicted of a crime. If these can be effectively screened and a reasonable risk assessment made, a significant portion of those kept in jail may be decreased -- those who are innocent of what they are accused of can continue on with their lives, and that $900 million figure can be cut down.

Washington State

Washington state has its own battle sorting through pros and cons of bail reform options. The ACLU reports that Washington, as of June 2017, has taken lead of its own charge investigating reform options.

It was this September that the ACLU-WA took up the “No Money, No Freedom: The Need for Bail Reform in Washington” position officially.

The concerns are similar to those aforementioned in New Jersey, Texas, and California. Opponents argue that a person’s wealth should not be the deciding factor for whether or not they must wait behind bars.

This particular release, though, outlines additional concerns with the current system. Among those are:

  • Those behind bars are less able to assist in preparing a defense with their attorney.

  • Being in jail hurts their prospects in court, and may even prevent a trial from occurring.

  • The loss of income, employment, and subsequently, housing.

  • The stress added to the family of the defendant.

The features proposed by the “No Money, No Freedom” effort include:

  • Decrease use of money bail. Detention or release should not be contingent upon the wealth or access to money of an individual.

  • Create less restrictive alternatives to jailing defendants before trial.

  • Ensure that all defendants are provided legal representation prior to their initial court hearing. A bail should not be determined without a competent legal counsel providing the judge with sufficient information to make a fair decision on whether or not to release a person.

  • The development of court pretrial programs that provide services at the beginning of a case, and allowing for more effective monitoring of people who are released to await trial.

  • Court appearance reminder call systems that can work to reduce failure to appear rates, preventing unnecessary warrants.