Law & the Courts

Conservatives Have a Stake in Bail Reform

(Photo: Vladek/Dreamstime)
No one should be kept in jail solely because he can’t afford to post bail.

‘Innocent until proven guilty”: It’s the bedrock ideal of the American justice system, a maxim familiar to every second-grader in the country.

But as grown-ups, we know that the truth is more complicated. Every day in America, 400,000 people sit behind bars in local jails around the country, not yet convicted of any crime. They’re innocent under the law, but in practice deprived of their liberty — jailed because they cannot afford the money bail set by a judge.

This is America’s pretrial population, and it is a blot on our national conscience, one that conservatives must focus their energies on erasing.

A 2013 report by the Drug Policy Alliance found that nearly 75 percent of the people in New Jersey jails were awaiting trial, and 40 percent of those people were detained solely because they could not afford money bail. Individuals were held in jail awaiting trial an average of ten months — an enormous amount of time, particularly for people who pose no risk to their communities. To put a price on liberty — before trial or conviction — defies American and conservative principles. Fortunately, recent local victories in courts and legislatures are turning the tide against this ineffective practice county by county and state by state. Still, we must do more to right this wrong.

Holding someone accused of a crime in jail before conviction is justified only if his release would clearly threaten public safety or result in the risk of his fleeing before trial. These are legitimate concerns, but they aren’t why so many are languishing in jail. The United States spends nearly $14 billion annually to keep mostly low-risk, nonviolent people in jail before their trial. Many of these will have their charges dropped, and most would not threaten their community if released.

This vast government intrusion into the lives of legally innocent people defies the conservative principles that shaped our Constitution and guide the Right today. It’s a miscarriage of justice and an enormous waste of taxpayer dollars. Justice Clarence Thomas recently upheld a federal-court ruling in Harris County, Texas, that found the county in violation of the U.S. Constitution for jailing poor people in Houston accused of low-level crimes simply because they could not afford their freedom. The county’s jail population consists overwhelmingly of people detained before trial, and nearly one in four are locked up because they cannot afford a bail of only $500.

We have allowed dangerous people with money to buy their pretrial freedom and those with fewer means to languish in jail, regardless of who is a risk to public safety.

Beyond the constitutional question, all that money we spend on pretrial detention isn’t doing what we want it to do: making us safer. Holding otherwise low-risk people in jail before trial unnecessarily makes them 40 percent more likely to commit a crime after release. Jail destabilizes and upends, stripping people of jobs and connections to family and community. That $14 billion doesn’t make us safer; it makes us more endangered as citizens and weaker as a nation.

Such a practice, widespread across the country, puts punishment before conviction, perverting the founding principles of our justice system. We have allowed dangerous people with money to buy their pretrial freedom and those with fewer means to languish in jail, regardless of who is a risk to public safety.

There is a better way. Decisions about whom to hold in jail before trial should be based on risk, not on ability to pay. Risk-assessment instruments that rely on evidence-based and validated metrics can give courts both a constitutional and a more reliable way of determining the impact on public safety of releasing a person. Individuals whose data suggest they are high-risk can be detained, while the vast majority of those deemed lower-risk can be safely released and monitored in the community.

Local leaders across the country have already begun to prove this is possible. Under Governor Chris Christie, New Jersey has made sweeping changes to its statewide pretrial system in a short amount of time. A diverse array of stakeholders — including all three branches of the state government — and justice advocates came together to pass comprehensive pretrial-justice reform that practically eliminated the use of money bail. The new reform prioritizes risk-based decision making, and the state has already seen remarkable results and significant drops in the jail population since it was implemented in January. Kentucky discontinued commercial bail in 1976, and the state’s use of a validated pretrial risk-assessment tool has reduced pretrial re-arrests by 15 percent. Connecticut and Illinois recently passed bail-reform bills, and California lawmakers are considering an overhaul to their bail system as well.

America can no longer afford, nor can we morally justify, a system of pretrial incarceration that revolves around wealth rather than public safety. State- and local-level policy changes in recent months have revealed the path to a form of justice that is consistent with our constitutional principles while also being more effective. Conservatives embrace the fact that people who have been financially successful can afford luxuries, but we also believe justice must be attainable for everyone. Bail reform therefore is not a luxury, but an essential priority.


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