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January 29, 2021
Every day in America thousands of people are locked-up because they don’t have money. Although those accused of a crime are presumed innocent until proven guilty, the monetary bail system denies them their freedom. Those unfortunate few, without resources, sit in jail and are at risk of losing their jobs, their homes and their families.
Certainly, it’s unfair to incarcerate someone merely because they cannot afford bail. It is equally unfair to every man and woman in this nation to contribute to the nearly $1 trillion spent on pretrial detention, according to the Pretrial Justice Institute - which amounts to about 6% of the Gross Domestic Product.
Correcting the bail crisis is not out of reach. This isn’t about being tough on crime. It’s about being fair. For some, even a nominal bond is out of reach. When an accused has no money, $1,500 might as well be $150,000.
For taxpayers the issue is just as compelling. If the cost of pretrial detention could be cut in half, taxpayers could save literally billions of dollars annually.
A recent CNN review of all 50 states and the District of Columbia found that the powerful bail industry has derailed, stalled or killed reform efforts in at least nine states. In spite of those special interests, more than 25 states, including Colorado, Connecticut, Ohio, Nevada, Utah and Kentucky, have passed laws or enacted changes that address bail practices, while several states have pending reform measures.
Here are examples of successful bail reform efforts. Former New Jersey Gov. Chris Christie’s bail reform program was implemented in 2017. The reform effort was bipartisan. Reform came about through a Republican governor, a Democratic legislature as well as the unlikely partnership of the state judiciary, prosecutors, defense attorneys and the American Civil Liberties Union.
According to the Chicago Tribune, New Jersey has enjoyed a significant drop in violent crime, a 29% decrease in pretrial incarceration, and virtually no change in recidivism or court appearance rates. In addition, New Jersey taxpayers saved hundreds of millions of dollars by not having low-risk, nonviolent offenders warehoused in local jails.
The Illinois legislature also passed a bail reform package. Starting on Jan. 1, 2023, “all persons charged with an offense shall be eligible for pretrial release before conviction,” and the “requirement of posting monetary bail” will be abolished.
The law will place the burden on state prosecutors to prove an accused should be detained, rather than the accused proving that they should be free pending trial.
According to the Illinois Times, the state’s attorney must request detention in each eligible case through a verified petition. If the defendant’s offense is a low-grade felony or misdemeanor, a hearing on their detention must be held within 24 hours of their first appearance before a judge, 48 hours for more serious offenses.
A couple of years ago, California enacted Senate Bill 10, a law that abolished cash bail in favor of a computer-based “risk assessment” model. Last fall, California voters rejected Senate Bill 10.
The legislature immediately got to work on a revised bail reform measure. The result is Senate Bill 262 and Assembly Bill 329. The new legislation will set bail at zero for misdemeanors and “low-level felonies,” and require that bail money be refunded if an accused makes all court appearances, charges are dropped or the case is dismissed, reported the Courthouse News Service.
Unfortunately, not all reform is good. New York’s effort at bail reform has fallen flat. The empire state’s legislation eliminated judicial discretion and limited prosecutors’ arguments for detention to only the risk of flight - not dangerousness. New York City Police Commissioner Dermot Shea has blamed the new bail law for a sharp rise in serious crimes.
Reform can reverse the detrimental impact monetary bond has on families, employment and the viability of neighborhoods and communities disproportionately affected by the criminal justice system. It appears that some states have found the balance between public safety and the efficient operation of the criminal court system - more states should take heed.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.
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