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July 8, 2017

"Criminal justice reform starts before the trial and sentence"

The title of this post is the title of this new commentary at The Hill authored by Marc Levin and Ed Chung. Here are excerpts (with links from the original): 

Recent media stories have speculated on the future of federal efforts to reform the criminal justice system. Much of the discussion surrounds the possibility of rekindling bipartisan sentencing and corrections reform legislation that was on the cusp of being enacted in the previous Congress.

While comprehensive reforms to lower federal mandatory minimum sentences remain aspirational, there are other policies on which the right and left agree that could have as much, if not more, impact in reducing the nation’s incarcerated population while maintaining public safety. 

Every day, approximately 450,000 people who have not been convicted of a crime are currently behind bars while they await adjudication of their case.  This is more than double the number of people in federal prison and two and half times the total jail population in 1980.  According to a recent analysis by the Prison Policy Initiative, “99 percent of the growth in jails over the last 15 years has been a result of increases in the pre-trial population.”  This increase was not due to a more criminalized or violent society but rather stemmed from discretionary criminal justice policies that increasingly conditioned release from jail on whether they could pay for bail. 

Money bail systems, however, are neither the most effective nor fairest way to achieve the goals of the justice system prior to trial.  For those whom a court determines to be a danger to society, allowing them to pay for their release seems like an illogical remedy where a rich dangerous person is freed but a poor dangerous person remains in jail. And, to ensure a person returns for court appearances, more effective methods have developed in recent years that combine an objective assessment of a person’s risks with appropriate human supervision and electronic monitoring.

The harms and inequities associated with money bail systems — especially when it comes to nonviolent, low-risk poor defendants — are well documented.  According to an analysis by the Arnold Foundation, keeping low-risk defendants in jail for even two or three days increases the likelihood that they will commit a new crime by 40 percent.  The impact also is felt disproportionately by those who cannot pay for even relatively modest bail and thus remain locked up.

The movement to reform bail systems has taken root in a small but growing number of both conservative and progressive states.  Connecticut last month enacted a statute that bars the imposition of financial conditions for pretrial release for most misdemeanors.  Earlier this year, New Jersey passed legislation that eliminated bail for minor crimes and instituted the use of a risk assessment tool to help courts determine pretrial supervision conditions.  Kentucky, which instituted the same risk assessment tool in 2013, will now automatically release people determined to be low-risk if they meet certain criteria.  And Washington, D.C., releases 90 percent of those arrested with conditions to report to a pretrial agency and comply with drug testing and other requirements. 

While state and local policy change is the primary means of achieving bail reform, given that pretrial detention implicates the guarantees of equal protection and due process found in the U.S. Constitution, the federal government can play a collaborative role, even if most of the people in jail awaiting trial are in local facilities.  Through its technical assistance efforts, the Department of Justice (DOJ) shares advancements made in a small number of states with a national audience and provides valuable data that reveals the impact of pretrial practices across the nation. From issuing statements of interest on bail in pending federal litigation to providing guidance on the proper use of risk assessment instruments, the DOJ must remain committed to pretrial policies that prioritize public safety over a person’s ability to pay.

Congress also has an important voice that can exemplify the bipartisan support for bail reform across the country.  The legislative branch’s bully pulpit is especially effective when emphasizing points of agreement across the political spectrum....

There is still much work to be done to reform the criminal justice system.  Fortunately, this remains a priority that transcends partisanship, even in the current political climate. It is time for our national leaders to act on the consensus developed among states, local communities, advocates, and think tanks representing different ideological perspectives like ours. 

July 8, 2017 at 11:07 AM | Permalink


It starts at least at the police stop or investigation.

Posted by: Joe | Jul 8, 2017 12:39:04 PM

The authors are left wing advocates, so have little capability to address this question.

What fraction of people stuck in jail with low bail have a serious, and untreated mental illness? They were arrested for some nuisance. The low bail could easily be posted by their families, even if they have no money. The families choose to not do so because they want an opportunity for their loved one to get treatment in a structured setting.

Much of this problem may be the result of the Supreme Court decision requiring physical harm take place before someone is forced into treatment, rather the medical necessity of the time before 1976.

As a result, a third of beds in jails across the nation are filled by straight mental patients, more misfit than maniac. The treatment they receive in jail is therefore highly beneficial. Bail reform might seriously hurt this population.

Posted by: David Behar | Jul 8, 2017 3:00:46 PM

The feds are the group that are grossly out if line with their enrire system. From their threats of mandatiries, extra rules that can double a sentence, right down to a poor guy possessing 7 shotgun shells who got hammered with 15 yrs under acca.

Constructive posession pretty much sucks, along with the long supervised release.

Some do more time on revocation than their sentence. All in all, why do even gave the feds, if only for cases that cross state lines making it tough to get info, events that effect the nation etc.

Who in hell launched the federal system needs to be horse whipped then put him on Obamacare for his treatment, deserves it.

Posted by: MidWestGuy | Jul 8, 2017 4:07:04 PM

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