Can a Bail Bill Give Hope to the Dying Art of Bipartisanship?

Out of the unbearable stagnancy of the Congressional health care impasse, one Democratic senator from California has just emerged with a legislative proposal of a different breed. Together with Republican Senator Rand Paul of Kentucky, Senator Kamala Harris has proposed a bipartisan bill intended to reform one of the many broken pieces of the criminal justice system: bail.

This bill, cited as the “Pretrial Integrity and Safety Act of 2017,” aims to incentivize the reform of state bail systems by offering grant money to those states and Indian tribes which discontinue the use of money bail as a pretrial release condition. The bill would allow for $10 million to be spent annually per state for three years on grants for bail system reform.

While this price tag may evoke embittered resistance from the average taxpayer, a deeper analysis of the criminal justice system and current fiscal trends unmasks the economic practicality and necessity of such a proposal.

One of the primary objectives of bail is to create an incentive for defendants to re-appear at trial. If a defendant appears at trial, he is able to recollect the money previously posted for bail. In the same vein, pretrial preventive detention seeks to protect public safety. However, evidence suggests that as many as 50% of pretrial detainees considered to be a “high risk” to public safety acquire release through money bail. Inherent systemic flaws—such as those resulting in the release of high-risk defendants based solely on criteria of affluence—shine a glaring light on the vast disparities between intents and outcomes.

Not only do monetary bail systems undermine the foundations of preventive detention, but they appear to violate the terms of the 1983 landmark Supreme Court case, Bearden v. Georgia, 461 U.S. 660, which forbids “punishing a person for his poverty.” Bearing in mind the previously discussed issue of high-risk defendant release, money bail accomplishes less in the way of protecting public safety and more in the way of rewarding the well-to-do and punishing the indigent. In addition, the Sixth Amendment provides for a defendant’s presumption of innocence, placing the burden of proof on the prosecution. Therefore, pretrial detainees are lawfully innocent and should be treated as such. Adding insult to injury, during the pretrial detainment, defendants who are unable to afford bail may undergo unseen afflictions such as loss of employment due to un-forecasted time away from work, lack of access to health care, inability to prepare a trial defense, etc.

How can Congressmen justify to their constituents the spending of $10 million per state on bail grants? A careful look at the hidden costs of the current system makes $10 million look like pocket change. In her bill, Harris reveals the nationwide monetary burden of pretrial detention. Presently, pretrial detainees comprise 95 percent of growth within the jail population since 2000, costing taxpayers $38 million daily and $14 billion annually. While the new bill would only be a starting point and certainly would not eliminate all pretrial detention costs, even its marginal monetary trade-offs and savings would most likely prove favorable for taxpayers in the long run.  

How exactly does the proposed bill de-incentivize pretrial detention and utilize grant money? In short, the bill seeks to incentivize states to use the least-restrictive means to accomplish their desired ends. One key element of the bill is the provision for the “presumption of [the defendant’s] release in most cases.” This element overcomes current systemic failures, minimizes detention costs, and upholds the Sixth Amendment. In order for such presumption to occur, a portion of the grant money would be designated to research-based pretrial assessments that objectively measure the risks associated with releasing each defendant.

Supposing the bill passes, civilians can rest assured that pretrial defendant accountability would not be abolished. On the contrary, the new bill would implement more cost-effective and noninvasive supervisory methods, listing “court date notifications by phone call, letters or postcards, text messages, [or] in-person reminders” as potential options. Recognizing that pretrial detention is necessary for defendants who actually pose risks to public safety, Harris’s bill includes three-prong right-to-counsel criteria for states wishing to qualify for grant money. In other words, for cases in which preventive detention seems necessary, states must ensure the detainee receives a hearing with a judicial officer, counsel, and clear and convincing evidence that he poses danger or risk.

While complex components of the criminal justice system cannot be reduced to simple equations and graphs, Senators Harris and Paul demonstrate in-depth analysis and forethought in their proposed legislation. While many politicians and the media continue to spin on the polarized hamster wheel of health care, taxpayers would do well to consider the potential unseen benefits of bail system reform legislation.

 

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