By Equitas National Advisor Marc Levin.
Excerpted from Real Clear Policy.
Former Chief Justice William Rehnquist stated: “In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” This presumption of innocence is not just a theory. Unfortunately, about 20 percent of those booked into jail are never charged or have their cases dismissed.
(D)etaining people before trial who do not pose a significant risk to public safety simply because they cannot afford bail is wrong.
There are numerous types of pretrial release, including different forms of bail. First, a court may release a defendant on his or her own recognizance, which means a simple promise to reappear for court proceedings without any other condition. Second, a court may release a defendant with non-financial conditions, which could include text reminders of court dates, drug treatment and testing, or electronic monitoring…Another option is an unsecured bond in which the defendant agrees that if they abscond, some money or property will pass to the government such as title to a car.
Fortunately, in recent years, risk assessment tools have been developed that have been proven to be better predictors of flight and re-arrest than ability to pay. These tools do not replace judicial discretion, but inform it.
(S)tudies commissioned by the top state courts in California and Texas found that using wealth-based detention results in higher crime rates, because it releases defendants more likely to be re-arrested for serious new offenses while keeping lower-risk defendants in jail.
Across the country, commercial bail is the most common form of release. However, four states don’t use it: Kentucky, Illinois, Oregon, and Wisconsin. These states still detain people who cannot afford to post secured money bail with the county. Even after pioneering a statewide pretrial assessment and supervision system, Kentucky lawmakers are looking at reforms in 2019 to promote more affordable bail amounts.
There may be more than one path to a just and effective pretrial system and there will surely be obstacles along the way. However, the destination is in sight: the end of an era of ever-growing pretrial jail populations that fails to deliver public safety and compromises our cherished constitutional rights of due process of equal protection.