Tuesday, November 10, 2015

Bail Reform: Is it Really What the Public Wants?

I never thought I would be quoting Donald Trump as it relates to the bail industry, but I couldn’t think of a more appropriate statement than the following, “We must be doing something right, we are leading in the polls.”  This statement is in regards to a recent poll being conducted by The News Journal in Delaware.  The News Journal is one of 30 print sites for USA Today and can be found at delawareonline.com.  In other words, this is no rinky dink media site.   If you don’t already know, Delaware is one of the states considering getting rid of “money bail” or as they refer to it bail reform.  The reality is that “bail reform” in the minds of those driving this initiative has nothing to do with reform but rather the complete elimination of bail from the criminal justice system.  Why I mentioned Donald Trump in my opening sentence and referred to the poll being administered on The News Journal website, is because while bail reform is being pushed by pretrial advocates and the public sector, it looks like it isn’t being supported by the public.  According the poll on the Delaware online website asking the public should Delaware end cash bail, the public is overwhelmingly stating its position. And that position is NO!  As of 11:00 AM PST today, November 10, 2015, 54% of those taking the poll have said keep the money bail system, while only 37% have said no.  Here is a link to the poll… https://polldaddy.com/poll/9168661/?view=results.

The results of this survey raise a very interesting and important question in my mind.  That is, why is so much media attention and effort being spent by activists and pretrial advocates on the elimination of money bail?  Especially when polls like this one all show that public opinion seems to support the bail industry.  In fact, if you survey (and we have) most stakeholders in the criminal justice system, you will find that their support of commercial bail is overwhelming and their perceptions of the industry are mostly positive.  Below are some survey results regarding bail that you will never see in the media.

  • In a 2012 survey at the American Judges’ Association National Conference, 96% of judges said that when a defendant was released on a commercial bail bond they were confident that they would appear in court.  30% of judges had NO CONFIDENCE that a defendant would show up when they were released by a public sector pretrial services agency.
  • In a 2012 survey taken at the eCourts Conference, 91% of criminal justice stakeholders (clerks, judges, administrators and attorneys) said that commercial bail plays an important role in the criminal justice system.  Additionally, when asked to compare commercial bail and public sector pretrial services in terms of effectiveness, 86% described bail as effective while only 48% described pretrial services as effective.
  • In a 2013 poll taken by NewsOne in Cook County (where there is no commercial bail) consumers were asked whether taxpayer dollars should be used to bail out inmates.  The results were an overwhelming “Absolutely Not” with 53% of the vote.
  • In a 2013 survey taken at the National Sheriffs’ Association Conference, 83% of Sheriffs said that using a commercial bail bond is the MOST EFFECTIVE form of pretrial release and the best way to ensure a defendant show up for court.  Only 13% said that public sector pretrial release agencies were the most effective. 

With people both inside the criminal justice system as well as the public at large all supporting the concept of bail and its effectiveness, then why does it seem like so many groups are out to eliminate bail and in the process creating such a firestorm of debate around the issue?

The only thing that I can say in response to that question is, I don’t know.  Is there some sort of secret agenda working within the system to do away bail because they don’t like us?  I don’t know, maybe.  Is there a disdain for the bail community by the American Bar Association because we compete for the same customer dollars?  I don’t know, maybe.  Is there need for the courts to generate more revenue for themselves and the bail industry is in the way?  Once again, I don’t really know.  I wish I did, but it is hard to answer questions that seem so cloak and dagger and laced with conspiracy theories.

That being said, there are a lot of these types of questions that I could answer in the same way by just saying “I don’t know, maybe” over and over again, however I think it would be better instead to tell you what I do know.  There is currently a fundamental shift happening in our criminal justice system.  This shift is an outcome of the “tough on crime” attitude and policies of the past that to be honest, have kept us safe and kept a lot of bad guys in jail.  Unfortunately, as the jails and prisons have gotten more crowded, there has been a shift in ideology amongst our leadership that now looks at our criminal justice system as the problem rather than the well documented and proven increases in crime.  While yes, our criminal justice system can always use improvements to ensure the safe, fair and balanced execution and enforcement of our laws, it does not mean that we should hastily change things and remove those components that are working just for the sake of change.  Any reform must truly be about reform and improving a system. Removing commercial bail from any state or county’s criminal justice system would not improve anything at all, but rather lead to more overcrowded jails, less accountability and more crime, i.e., Chicago and Philadelphia.   History does repeat itself, and if we are looking for a re-run of the ideological criminal justice reform movement of the 60s and 70s, which by the way led to the tough on crime policies of the 80s and 90s, than we will just end up right back where we are today.

The concept of bail is one that has been around for centuries, even dating back to biblical times.  This longevity is not just a testament to the effectiveness of bail as a mechanism for holding people accountable, but also proof of its ability to serve as a tool for ALL in the criminal justice system regardless of race, income level, etc.   As I have said before, the proof is in the pudding, and the pudding here is years of data and research that show how effective this industry is at ensuring our system has a chance to work in a fair and balanced way.  And no matter how hard the public sector pretrial advocates try to spread false narratives about our industry and tout their fancy new “evidenced based risk assessments”, the public will hopefully be able to look past the smoke and see the truth.  Because the truth is anything that these public sector advocates say they can do to reform the criminal justice system, the private sector is already doing it and has been for years at no cost to taxpayers and with much greater success.  It is time our public officials start paying attention to the facts and start listening to those that they represent, because in Delaware, the people are speaking loud and clear, “DO NOT END THE STATE’S CASH BAIL SYSTEM.