NEW REPORT: Money Bail Serves No Purpose in a Fair, Effective Justice System

The Justice Policy Institute released the first of a 3-part series on bail, Bail Fail: Why the U.S. Should End the Practice of Using Money for Bail. This could not have come at a better time in light of the prosecutor races taking place right now.

During the Justice Reinvestment bills at the last session of the legislature (Acts 139 and 140) the Honolulu prosecutor, in an act of desperation, brought in the bail community to help him weaken these important justice bills. In doing so, he showed who he is and highlighted the bail profiteers, who called their client ‘criminals’ despite the right guaranteed by the constitution of ‘innocent until proven guilty’.

Bail is a huge issue in Hawai‘i since the Justice Reinvestment Initiative analysts found that we hold pre-trial detainees for 71 days as opposed to 3-5 days in 39 of the largest counties in the US. It is no wonder our jails are overcrowded and we are broke.

Below is the press release from Justice Policy Institute and links to the report. We are definitely on the right track in challenging a system that is broken.

Report: Bail Fail: Why the U.S. Should End the Practice of Using Money for Bail, Justice Policy Institute, September 2012

Press Release – Release: Money Bail Serves No Purpose in a Fair, Effective Justice System
Executive Summary
Full Report

Excerpt from the press release:

A national report released today by the Justice Policy Institute (JPI) shows that money bail is a failed policy that does not protect public safety, discriminates against those without financial means, and causes huge costs to taxpayers and those who are unnecessarily jailed while awaiting their day in court.

According to Bail Fail: Why the U.S. Should End the Practice of Money for Bail,“Current policies and practices around money bail are among the primary drivers of growth in our jail populations. On any given day, 60 percent of the people in U.S. jails are not convicted but are being held as they await the resolution of their charge. This time in detention hinders them from taking care of their families, jobs and communities while overcrowding jails and creating unsustainable budgets.”  The report is the first in a three-part series of analysis on bail, for-profit bail bonding and the community impacts slated for release throughout the month of September.

U.S. Attorney General Eric Holder said last year that taxpayers spend over $9 billion in jail costs alone to keep people in pretrial detention. Meanwhile, people who are held in jail while awaiting a court date may lose their job and housing. Their children and families may suffer from not having that person in the home taking care of his or her responsibilities. People who are jailed while awaiting trial are also more likely to be found guilty and go to prison than their counterparts who are free. This is for a variety of reasons, including the impact of enduring harsh jail conditions, reduced access to defense attorneys, inability to maintain the types of social and personal responsibilities, and the reality that showing up in shackles and a jail jumpsuit creates an impression of guilt on judges and juries.

“Our constitution and laws are supposed to protect the presumption of innocence,” said Dr. Melissa Neal, author of Bail Fail and senior research associate at JPI. “Yet thousands of people are held in jails before trial because they don’t have access to money for bail. This is a waste of taxpayer money and it causes tremendous collateral consequences to those being unnecessarily incarcerated.”

The report shows how the average bail amount for people who are detained has more than doubled from $39,800 in 1992 to $89,900 in 2006. This is despite evidence that higher bail amounts are not related to more public safety and that people who are unable to afford money bail are often a lower risk of dangerousness or failure to appear in court – the two legal justifications to incarcerate someone pretrial – than those who can make bail.

“The disproportionality in our country’s incarceration rate starts at the jailhouse door,” noted Tracy Velázquez, executive director of JPI.  “African American residents are at least five times as likely to be in jail as white residents. That some are released pretrial because they have money while others who can’t afford bail stay in jail means that economic disparities lead to justice disparities. It’s time we stop this moving walkway to prison.”

Recommendations made in Bail Fail include the following:

1.) Eliminate money bail. While eliminating the use of money bail may be challenging, it is possible to begin taking steps in this direction through the following:

Ban the use of for-profit commercial bail bonding companies.
Four states have banned the involvement of for-profit, private citizen businesses in the judicial process:  Kentucky, Wisconsin, Illinois, and Oregon.  Around the U.S., various jurisdictions have chosen to ban bail bondsmen even if their state has not, such as Broward County, Texas, and Philadelphia, Pennsylvania.

2.) Amend the Bail Reform Act and policies to comply with the Equal Protection Clause.

Current practices allow for people to be treated differently within the criminal justice system on account of their financial status. Elimination of money bail is an important step toward eliminating disparities in pretrial outcomes due to financial status.

3.) Include the voices of all involved parties to ensure that reforms to the pretrial process are meaningful and effective.

As victims and their advocates provide a unique and critical understanding of the harm done and potential harm that could be done, it is important to build them into the pretrial release decision making process.

4.) Expand community education programs, such as the Neighborhood Defendant Rights programs, that inform people in the community about how to navigate the pretrial process.

The confusing and inherently coercive pretrial process is challenging even for those with adequate financial resources and educational background.  Understanding the process, legal rights, and what to expect could help people navigate this part of the case process more successfully.

5.) Use citations and summons to reduce the number of people being arrested and processed through jails.

This is one solution to our jail overcrowding problem as police officers can more easily dispense citations while on the streets without needing to transport individuals to a booking facility.

6.) Use standardized, validated risk assessments to determine who to release and how to release.

Validated risk assessments are gaining popularity as judges look for more objective ways to conduct the pretrial process and many states can now provide models for how to implement this practice.

7.) Implement measures of pretrial detention and release services to evaluate current programming and better inform pretrial reform efforts.

In order to better understand the impact of pretrial detention and how the U.S. is performing compared to other nations, national data on pretrial detention should be gathered from jails and prisons that hold people who are going through the pretrial process.

8.) For-profit bail bonding businesses should be required to report on pretrial outcome measures such as rates of forfeiture and failures to appear.

For-profit bail bonding companies are responsible for the release of millions of defendants each year.  At this time, there is little regulation or oversight over this crucial aspect of public safety. Only when for-profit bail bonding companies are required to report on indicators of pretrial performance and outcomes will policymakers be able to make educated decisions around the use of bail and bail bonding as opposed to non-financial release options.

9.) Utilize pretrial supervision agencies.

Pretrial services can assist both law enforcement and judicial officers to promote citations and appropriate bail determinations by providing risk assessment and fact-finding services.

10.) Use court notifications.

Through personally manned or computerized programs, reminding people about upcoming hearings has proven to reduce failure-to-appear rates.

11.) Better utilize technology to improve pretrial processes.

Pretrial reform is a daunting task for cities and counties operating on a stringent budget.  Software is now available allowing modeling of communities and interventions so that jurisdictions can test changes to their systems and estimate outcomes before actually instituting changes.

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