Virtually every American has watched enough TV cop dramas to know about the Miranda warning (“You have the right to remain silent …”) to understand that defendants are presumed innocent until proven otherwise, and to know that our founding fathers believed it better to let 100 guilty people go free than to imprison one innocent person.
Yet the criminal-justice system doesn’t always work that way. Too often, I hear from people—and even people who serve on juries—who believe that “if you haven’t done anything wrong, you’ve got nothing to fear.” It’s far more common for average, law-abiding citizens to think that those people who are entangled by the law must be guilty of something — and that the authorities rarely are mistaken or craven. A variety of local scandals casts doubt on placing such trust in the justice system.
Reforming a complex system—actually, thousands of local, state and federal systems—is no easy task, especially given the outsize influence of the law-enforcement lobbies in state capitols. Legislators don’t want to be at odds with their local police chiefs and they certainly don’t want to be the target of “soft on crime” hit mailers from police unions.
Nevertheless, serious reform can happen, as we saw last year with passage of a new law that limits the ability of police agencies to take private property without first obtaining a conviction through a disreputable practice known as civil asset forfeiture. In that case, concerns about fairness actually trumped fears about losing money.
This year, another fairness-related criminal-justice issue is advancing in the Legislature in the form of two identical bills. The issue involves bail reform. The most I’ve thought about bail before this debate was from my short walks past the county courthouse, where several neon-signed storefronts offer “bail bonds” at the lowest rates and easiest terms.
Going back to those TV dramas, we know that judges bang their gavel and declare that so-and-so, accused of car theft, can be released on, say, $100,000 bail. That means he—or his family members—will have to pay 10 percent of that amount to a bail bonds company, which posts a bond guaranteeing the full amount if so-and-so skips town. Bail companies use “recovery agents” to track down those defendants who run away. If they don’t haul them to court, the companies forfeit the $100,000.
Bail companies argue that the system saves money because a private entity, rather than the government, is assuring compliance. But critics of “money bail” argue that it actually is costly to taxpayers, because a large percentage of defendants can’t come up with the cash and end up spending long periods of time in jail. Those jail stays are costly, and the wheels of justice turn slowly. But reform isn’t solely about money. It’s about justice.
People accused of a crime are presumed innocent. They often actually are innocent. Critics often focus on this unfair situation: A poor person accused of a relatively minor crime might be stuck in jail, while a wealthy person accused of a serious crime can walk away after posting money bail. The American Civil Liberties Union points to racial and ethnic disparities in the system, which are concerning. Families go deep into debt to free loved ones. But these issues are not the main problem.
“A study, using data from state courts, found that defendants who were detained for the entire pretrial period were over four times more likely to be sentenced to jail, and over three times more likely to be sentenced to prison than defendants who were released at some point pending trial,” according to a 2013 report from the Laura and John Arnold Foundation.
Why are those unable to post bail more likely to face prison time?
Because they are more likely to agree to a plea bargain. If you’re stuck in jail, you can’t go to work, pay the rent or take care of your kids. Rather than lose one’s job or apartment, and have Child Protective Services take custody of the children, defendants often will accept a deal. The system already is stacked in the prosecution’s favor, and the money bail system puts a heavy thumb on the scales of justice.
Senate Bill 10 by Sen. Bob Hertzberg, D-Van Nuys, and Assembly Bill 42 by Assemblyman Rob Bonta, D-Oakland, would largely replace the money bail system with a system based on an assessment of the individual risk defendants pose — rather than the size of their bank accounts. It doesn’t totally eliminate money bail, which is protected in the state constitution, but it reduces how often it’s used.
The bills are in appropriations committees because of their cost, but are still alive despite lobbying by the bail industry, which understandably views them as an existential threat. Pass or fail, it’s only a matter of time before the state changes the current pretrial release system. That’s a good thing for anyone who wants to make our justice system a more just system.
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