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Derrick Torrence of Baltimore was charged with disorderly conduct and rioting in the aftermath of the Freddie Gray murder and bail was set at $250,000. For Derrick, like most people, $250,000 is an astronomical amount. Because he could not pay, he was forced to sit in jail for a month, neglecting his two sons, until the charges were eventually dropped. Many innocent, impoverished defendants across the country sit in jail like Derrick and await their trial simply because they cannot afford to pay. Monetary bail must be abolished and replaced with a system that is equitable and utilizes risk assessment instead.

Our current bail system has a way of disproportionately hurting those who don’t have means. Those who can’t afford to pay can face grave consequences if they can’t come up with the money. An innocent defendant who can’t afford bail typically has to choose between sitting in jail or pleading guilty for a crime he or she didn’t commit.

If the defendant is forced to wait for his or her trial in jail, it can have disastrous effects. Many low-wage defendants have minimum wage jobs where, if absent for one day, he or she risks being terminated. Others lose living arrangements or are prevented from giving critical aid to their loved ones. In addition, prison often leads to meeting the wrong people and getting caught up in criminal activity.

If the defendant decides to plead guilty, the consequences can be equally dire. Any criminal record can severely limit a person’s options for employment, housing and other necessities. It often takes years for a convicted criminal to recover from a guilty plea, and the mark on a record is difficult to erase. Is it just or moral to preserve a system that effectively coerces people into pleading guilty to crimes they didn’t commit because they can’t afford to post bail?

According to Spurgeon Kennedy, Director of the Office of Strategic Development at the Pretrial Services Agency for the District of Columbia, the pretrial justice system in Washington D.C. has instituted reasonable reforms. In D.C., monetary bail is only used if the judge decides the defendant can afford it. The results are that 88% of defendants are released without financial consequence, 99% of those released have not since been rearrested, and the jails don’t hold people who are there simply because they can’t afford to pay.

These reforms are only the first step towards fixing a broken criminal justice system: “It didn’t happen overnight,” says Kennedy, “but locally, we have created legal and cultural expectations that, as stated by former Chief Justice William Rehnquist, ‘liberty pretrial is the norm and that detention prior to trial [is] the carefully limited exception.’” Incarceration as a limited exception is certainly a difficult goal, but ending money bail is the first step toward rethinking how states and municipalities view those they arrest. Arresting authorities should institute similar systems to the one that has worked so well in D.C.

Risk assessments are much better tools than financial punishments in ensuring a defendant will not try to leave town. While risk assessments aren’t perfect, they are a step in the right direction. Defendants can also be monitored with phone calls, drug tests, and ankle-bracelets to ensure compliance. These alternative measures are more effective than monetary bail, and in the interest of fairness, they should be used instead.

The objective of the criminal justice system is to punish the guilty and defend the innocent, but the system often can’t tell the difference in the pre-trial phase. Instead it incarcerates people based on their ability to pay, which disproportionately hurt those of a certain ethnicity, socioeconomic status, or education. Alec Karakatsanis, co-founder of the nonprofit civil rights organization Equal Justice Under Law argues, “Nobody should be held in a cage because they’re poor. Detention should be based on objective evidentiary factors, like whether the person is a danger to the community or a flight risk—not how much money’s in their pocket.” Monetary bail ends up disproportionately affecting the African American and Hispanic communities in major cities, because statistically these people will be less likely to be able to afford bail. Incarceration should be done by an assessment of danger and of flight risk, not of ability to pay.

We don’t want people in jail who are there simply because they couldn’t afford the price of bail. We should follow Washington D.C.’s example and use monetary bail judiciously while at the same time implementing risk assessment and monitoring tools that will eventually take the place of monetary bail entirely. Our justice system should not incarcerate innocent people without a reasonable cause, nor should it discriminate based on the ability to pay. The current system must be changed to implement risk assessments and monetary bail must end.

 


Tim Lazar
Guest Writer: 
Tim Lazar is a 2015 graduate of Wheaton College with a degree in Economics.  He’s passionate about liberty and free markets in addition to criminal justice reform.  He enjoys biking, playing his ukulele, and listening to the Grateful Dead.

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