Abolition of cash bail makes a strong case for reduction of overcrowding in jails and helping those with little financial access
Cash bail has been a topic of debate in recent years, with advocates for criminal justice reform demanding that the system of paying money to avoid going to jail be removed altogether. They say that it would not just help with overcrowding of jails, but it would also serve as a just move to those sections of the society that can barely afford to pay their bills, let alone their bond money - but are they right? Should it be abolished altogether?
According to a Prison Policy Initiative report published on March 19, 2019, says that the American criminal justice system holds almost 2.3 million people in 1,719 state prisons, 109 federal prisons, 1,772 juvenile correctional facilities and 3,163 local jails among others. 600,000 people enter prison gates, but people go to jail 10.6 million times each year and the reason why is that most of them aren't convicted. While some of them make bail, others who are less financially fortunate remain behind bars. The report says that less than 150,000 people a day are convicted, and are generally serving misdemeanors sentences under a year.
However, who are the ones that would be affected negatively if cash bail was removed? Is it time for us to pull up our socks and find other measures to improve and move forward?
MEA WorldWide (MEAWW) spoke to Bo Dietl, a former NYPD detective and founder and CEO of Beau Dietl & Associates and Beau Dietl Consulting Services as well as Ron Wright, Professor of Law at Wake Forest University and one of the best known criminal justice scholars in the country.
Cash bail, that was started in the United States in Colonial America, before the American Revolution is based on English common law. When America gained its independence, the practice continued. The 8th Amendment, in fact, prohibits excessive bail. The definition of excessive bail is up to interpretation, however.
Is cash bail still relevant today?
The answer is yes, but it definitely needs some changes. "Ultimately the idea behind cash bail is to create a sense of safety and trust in the criminal justice system – that by temporarily leveraging someone’s property we can ensure that person meets their obligations to a system that benefits all of us by punishing criminals and protecting victims. It is still relevant today, but the system disproportionately affects those defendants with little access to resources," Dietl says.
California became the first ever state in the country to scrap it all together last year along with New Jersey. As for Arizona and New York, they have decided to end cash bail for most cases. The state Legislature of New York eliminated cash bail for most misdemeanor and non-violent felony offenses. The law goes into effect in January 2020.
"The overwhelming majority of state court systems still rely on cash bail as one of the available financial conditions of release for people during the time between arrest and resolution of the charges (resolved either through trial or guilty plea). So bail remains highly relevant in most places," says Wright, "Only a few jurisdictions are trying to run their courts and jails without using cash bail."
What are the implications of removing cash bail?
Not only would removing cash bail help the law be fair to both the rich and the poor, but it would also help with overcrowding of jail and save operators expenses.
"What we are seeing happening is more and more indigent individuals – people with no property or with so little that giving it up is essentially the same as giving up their freedom – those people are being locked up for petty or non-violent offenses and they can’t get out of jail because they can’t afford a few hundred or thousand dollars bail," Dietl says.
He says that it often makes the situation worse for them than it already is since they are unable to "participate in their own defense effectively because they are locked up and cannot meet with lawyers, family and others who might be able to assist them." In some cases, defendants even opt to take a plea deal even if they feel they could beat the case.
"The percentage of arrestees who are held in jail until their charges are resolved has crept up over the years. That is expensive for jail operations and a real hardship on the arrestees and their families. If judges try to hold arrestees in jail only if they are a threat to flee before trial or if they present a serious risk of committing new crimes before the trial date for the earlier charge, they will detain fewer people overall," says Wright.
Dietl adds that there's a possibility that removing cash bail could actually help reduce the worse crimes. "What happens in many cases is that defendants accused of low level, non-violent offenses can’t make bail and wind up spending months or in some cases years in jail awaiting trial. In some cases, these defendants get caught up in worse crimes and eventually come out as hardened criminals. Obviously, this is not only bad for these individuals and their families but the communities they are released to," he says.
So if cash bail is removed, what is an alternative?
Risk assessment, house arrest, electronic monitoring, pretrial services and the like could possibly be put into place.
"There are various financial and non-financial conditions of release that judges can use to ensure that arrestees appear for later court proceedings and stay away from committing new crimes. Judges might order the arrestee to stay away from certain people or places. They could also ask the arrestees to promise to pay some amount if they fail to appear as scheduled (an amount that comes due only after the failure to appear)," suggests Dietl.
"With the pretrial service system, defendants are assigned a case worker (similar to a probation officer) that they have to check in with on a regular basis until their court date," adds Wright.
So who will replace bondsmen?
The bail bond industry would be the worst hit if the cash bail system is removed. According to a recent 2019 report by ACLU and Color of Change, bail bond companies which are at the top of the food chain - Tokio Marine, Fairfax Financial Holdings, Randall & Quilter, Endeavour Capital, Bankers Financial, AIA Holdings, Financial Casualty & Surety, Lexington National, ASC-USI, back a majority of the $14 billion in bail bonds each year, resulting in a profit of anywhere from $1.4 to 2.4 billion dollars in the same year.
"It would probably be an expansion or duplication of the same departments that handle probation," says Dietl, clarifying that there may or may not be new jobs or posts created that would come into effect. "It may even save states money because they would be spending a fraction of what it costs per inmate to keep someone in jail."
"The courts would probably want to administer risk assessment instruments for all arrestees," notes Wright suggesting that something as simple as a text could come into play. "They would also create programs that provide timely reminders to arrestees on the days leading up to their court appearances, often using text messages."
Has California shown results?
Only time can tell, says Wright. The bill to end cash bail in California has been met with opposition and has been put on hold until a 2020 referendum.
"Currently in California about 49 counties are using some risk assessment methods to help courts determine which defendants should be released and which pose a high risk to the public. These programs will have to go on for a longer period of time until we have enough data to see how effective they are. Public safety is key in these reform efforts, adds Wright.
However, he says that while cash bail is good for low-level non-violent crimes the violent, serious offenses should definitely await trial. Same goes for those who commit more crimes while on bail. "The safety of our communities is paramount," he says.
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