Wednesday, January 27, 2016

Bail Reform: Bully Activism at its Best

To say the criminal justice system is a complex thing is an understatement at best.  To say that there are things that could be improved in the system is also simply pointing out the obvious.  However to say that the cure for improving this imperfect complex system is as simple as eliminating the commercial bail industry is just ludicrous.

Over the past several months there have been several lawsuits filed around the country by two activist attorneys on behalf of a Washington D.C. non-profit.  Most of these lawsuits have been filed in small counties where these attorneys assume that they can force the hand of these small local governments to give in and settle the cases.   Unfortunately this tact of utilizing the court system to challenge policy, is ineffective at delivering any type of workable solution to the real problems in the criminal justice system.  Additionally, the outcome being forced on these counties is going to lead to greater socioeconomic inequalities and substantial levels of decrease in public safety and accountability across the system.

The argument being made in each of these lawsuits is one of constitutionality.  The activists claim that predetermined bail schedules are unconstitutional because they violate the equal protection clause provided in the 14th Amendment.   Simply said, those with money are able to bail out and those without money must stay in jail.  The problem with this statement is that it distorts and ignores the purpose of bail and the strategic rationale behind the creation of bail schedules in the first place.  Here are a couple facts that you won’t hear from the activists.  First, bail schedules are not created through magic or chance or secret money schemes.  They are well thought out financial legal determinations made by a panel of several judges in a given county.  They are also continuously reviewed and updated on a predetermined schedule to ensure they maintain fairness and relevance over time.  Second, the main purpose of these schedules is to speed up and facilitate the release process.  When courts are closed, defendants are able to have a bail set by the schedule and be released quicker than having to wait for the court to open the next day.  In other words, more people spending less time in jail and saving the county the cost of a jail bed.  Once again, the intended purpose of bail schedules is to speed up the release process for defendants and to make an argument against a process intended to quickly and efficiently support a defendants 8th amendment right is nothing but counterproductive and frivolous.

At the core of these lawsuits is the belief that the bail system is the primary reason why problems exist across our criminal justices system.  Bail gets blamed for jails being crowded.  Bail gets blamed for jails letting too many people out. Bail gets blamed for racism.  Bail gets blamed for keeping poor people in jail.  While each of these accusations makes great headlines for the activists and those that support them, the reality is that each of these claims is patently untrue.  Bail is, in actuality, the ultimate equalizer in the criminal justice system.  It exists in a space between the defendant, the victim and the community and ensures that all parties have an equal chance at justice.  Without bail the poor would be worse off and our communities would be less safe.

Let me explain.  In each and every one of the lawsuits being filed by these activists, they are making the claim that bail is only for the rich and discriminates against the poor.  This couldn’t be further from the truth.  What these activist lawyers don’t understand is that the main customer of the bail industry is the poor. Why?  Because the so called “rich” will typically post the full amount of the bond and not use a commercial bail bondsman.  The bail industry exists to assist those families who cannot afford to pay the full amount of the bond.  The bail industry makes release more attainable and affordable by charging a fraction of the amount of the set bail for a promise/guarantee to return to court.  Without bail, the jails would quickly fill up and the only alternative would be to release everyone on simply their promise to appear.  And we know from history and experience that this form of release is the least effective at ensuring a defendant returns to court.  Releasing someone from jail with NO financial incentive to return, not only eliminates any sense of accountability in our criminal justice system, but also creates a real threat to public safety.  When a defendant fails to appear for trial, the victim is re-victimized and the community is less safe from future crimes.

It is important for people to understand that the ultimate purpose of bail is not about release, it is about appearance.  Defendants should not be released if there is no confidence in them returning to court.  What bail does is create confidence amongst the victims, the families, the communities and the courts that there will be a trial and that justice will have its best chance at being served.  How can anyone think that removing this essential component from the criminal justice system is a responsible or even moral act.

While not a perfect institution by any means, the bail industry is not the evil empire that it is being made out to be by those that have openly admitted to wanting to end its existence.  While only a small cog in the overall complex machine that is our criminal justice system, bail is still an essential and “load bearing” piece of the puzzle that not only supports racial and socioeconomic equalities, but does so in a way that is fair and accountable.  In my view that is something that can’t be overlook and shouldn’t be removed from the system because of misguided and frivolous bully activism.