In America, when a person is charged with a crime, they are sent to jail to await trial. The wait can last anywhere from days, weeks, or months. This often comes with a myriad of other problems. Jail has a very destabilizing effect, especially on low-risk people who are unable to afford bail. Even a short stay of pretrial detention comes with a number of other problems. It can cause people to lose their jobs, their homes, and their children. These individuals, who are presumed innocent under the law, and may in fact be innocent, are spending time in jail for a crime they haven’t been found guilty of yet. This leads many to plead guilty just to get out of jail and return to their lives.
Your only chance of avoiding that pre-trial jail time is to pay your bail. For nonviolent petty misdemeanors, this number is usually $500. This system of paying for one’s freedom is both discriminatory and dangerous for the public. If you are a poor, single mom who gets arrested for driving without a valid license, and you can’t afford your bail, then you wait in jail. Yet someone awaiting trial on aggravated assault that makes bail is free to walk the streets.
This type of dichotomy has spurred a bail reform movement. Arguments that this cash bail system has fueled a multibillion-dollar industry, and that courts are relying on it more to make money are gaining traction. A civil rights lawyer named Alex Karakatsanis has sued multiple jurisdictions in several states, representing single mothers, homeless men, and those with mental disabilities. As a result, five of the cities have changed their policies.
Some advocates, rather than waiting for the advancement of bail reform to occur organically, they are taking direct action by raising charitable funds that are used to put up bail for defendants that are too poor to pay their way out of jail. Those who support the bail system as is say that without their own money on the line, these potential criminals will have nothing to convince them to return for their court dates, yet the Bronx Freedom Fund reports that, out of the 600 people charged with misdemeanors they have bailed out since 2007, 96 percent returned for their court dates, despite having none of their own money on the line. 55 percent had their charges dismissed entirely, and many of them probably would have pled guilty if the fund had not given the opportunity to fight their case.
Rather than use a system based on the wealth of the accused, pretrial systems should be based on the risk the accused poses to their community. These systems should incorporate evidence-based and validated risk assessment tools to accurately predict the impact the accused will have on public safety, give judges the leeway to detain those defendants whose data suggests are a high flight-risk or at a high risk of committing another crime, allow for pretrial supervision of those people who can be safely monitored in the community, and allow for timely access to counsel for the accused.
New Jersey is an example of a city that has had its bail system overhauled. As of January 1, 2017, judges now consider the defendants flight risk and threat to public safety when deciding to detain them while they await trial. Bail still remains an option, but it is rarely used. Out of 3,382 cases statewide that were processed in the first four weeks of January, judges set bail only three times. 283 of those defendants were held without bail due to being a significant flight risk, having been accused of a serious crime, or both. The new system assigns individuals a score between one and six. This risk assessment is administered within 48 hours of being arrested. These assessments are to be used as a guide, and judges are still able to make a ruling that goes against the recommendation of the system. This flexibility allows judges to make what they consider the best decision given the situation the defendants are in.
The cash-bail industry is an enterprise that systematically violates the constitutional rights of America’s most vulnerable, with no increase in public safety and security. Under this type of system, any person released on bail could go out and commit a crime while awaiting trial. Under a risk-assessment system, objective measures would be used to keep those most likely of recommitting a crime and those most likely of fleeing under lock and key, while those who pose no danger of flight or to public safety are allowed to resume their daily lives while awaiting trial. While no system can eliminate all risk, a system based around risk assessment seems like a system that will be most successful at increasing public safety.
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