The Bail Problem

People are stuck in jail before they’re even convicted of a crime all because they cannot afford to make bail.  These people are not only costing states billions of dollars each year, but their plight wages lasting destruction upon the communities from which they come.

Bail was established to ensure that a defendant will come to court and not flee.  People who actually flee or otherwise avoid court is statistically a very small number of people. However, today nationally there are 450,000 people currently awaiting trial in jail because they cannot afford bail.  These are people who have not yet been convicted of a crime. They have merely been charged and therefore under the law they are innocent until proven guilty.

These 450,000 charged people (not yet convicted of the crime(s)) who are incarcerated awaiting trial cost state and local governments some 14 billion dollars every year.  I don’t know about you, but I can think of many far better things we could be doing with that money.

Furthermore, the problem is compounded in terms of the toll that these incarcerations place on communities.   while these people who are supposedly innocent until proven guilty sit behind bars they often lose their jobs and lose contact with their families.   this has a double-edged consequence the families themselves are affected buy a loss of income as well as likely a parental figure and secondly the incarcerated person himself is further disenfranchised from family and employment. this disenfranchisement leads to a higher recidivism rate which is a problem for the community as a whole.

There is yet another problem facing these 450,000 charged people and that is their likelihood of conviction and longer sentences statistically. Studies have shown that when a defendant is in custody prior to trial that defendant is far more likely to be convicted of the crime. Moreover the defendant who is in custody prior to trial receives longer sentences then those who are able to post bail. this should not come as a surprise it is human nature for us, for juries, to inherently trust law enforcement and prosecutors as well as to inherently distrust someone who is in shackles and wearing a jail jumpsuit.

By contrast the defendant who is able to post bail is much more likely to be able to maintain employment to maintain connections with their family and thereby be less likely to commit more crime in the future.  Furthermore, the defendant who is able to walk into court as an independent person, wearing nice clothes, not wearing handcuffs, not in an orange jumpsuit, is much more likely to be seen as a person by jury or judge, thereby being less likely to be convicted and less likely to receive a longer sentence.

The Guilty plea problem

Even innocent people sometimes plead guilty to crimes they did not commit simply to get out of jail and back to their homes and families.

There is something called the guilty plea problem.  It may shock you to learn that people- even innocent people- too often plead guilty to crimes they did not commit just to get out of jail.  Jail is a place no one wants to be.  There are horrors that take place in jails around this country: sexual assaults, physical beatings, psychological torture and shame.  These factors combined with the separation from family and employment described above lead some people to find jail unendurable.  

People should not be put into a situation where they feel their only option is to plead guilty just to get out of jail, being unable to afford bail which would enable them to get out of jail and still defend themselves in court.  But for far too many poor people, bail is simply not an option and this plays into the hands of prosecutors who know that they have yet another bargaining chip to hold against the defendant.  Court is far far from an even playing field in these situations.

The Solution?  

Let’s trust computers over a cash bail system.  …not so fast.

Computer algorithms designed to “predict” whether a defendant is likely or not to show up for court hearings are said to replace The need for cash bail systems. these computer algorithms use data such as Flight Risk the danger to the community and other demographic factors to come up with a report that basically indicates the likelihood or not that the particular defendant will return to court.

Sounds good,  doesn’t it?  Not so fast. On one level this type of algorithm shows a lot of promise you at the same time raises a lot of questions. some of the questions that need answered are who is designing this algorithm who is making these decisions? just because something comes out of a computer does not make it fair it does not make it just. I believe that it is all too possible if not even probable that a computer-generated statistic could be even more unjust could be even more repressive than is our current bail system.

I believe that ultimately the solution must be some sort of hybrid using computer generated statistics as but one factor in determining the likelihood of a particular defendant being a Flight Risk. I still believe that the decision itself should rest in an objective third-party decision maker who is able to show discretion and consider each case From the human perspective.

The Bottom Line

The current system is broken.  The bail system in the United States is yet another broken spoke on a damaged wheel that grinds more than it turns.

Our cash-bail system at present is onerous, oppressive, and leads to wrongful convictions.  We can all agree that a solution to the bail problem needs to be sought- the answer may just be a little more difficult to find and agree upon.

Regardless, I support efforts to reform and even abolish the bail system as we currently know it, as long as what replaces it infuses more human dignity into the process.  

What are your thoughts on how we ought to address the bail situation in this country?

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