OPINION: The Right To Bail Is Critical To Fair Criminal Justice

Horace Cooper | Former Constitutional Law Professor, George Mason Law School

Our country is having a robust debate about “criminal justice reform.” While there are many aspects of our criminal justice system that should be examined — notably, the increasing number of statutes both federal and state in which individuals can be convicted of violations without actually “intending” or “knowingly” breaking the law — there are other issues where proposals for reform would make our system worse than it is presently.

One of the areas where reformers would make the criminal justice system worse is so-called “bail reform.” Opponents are targeting the use of bail, which is where defendants post a bond and promise they will appear for trial.

These so-called reformers seek to eliminate this option altogether claiming that it would be better to either detain individuals prior to trial or else release them with no financial bond of any kind prior to trial.

They argue that the use of bail makes it harder for poorer defendants to stay out of jail prior to trial. The problem with that is: there are a number of companies and services that will assist you in getting a bond. Only in extreme cases are those options not available.

On the other hand, if bail is no longer an option, prosecutors and judges will increasingly exercise the option of seeking detention prior to trial. The problem with this option is that the costs of greater detention will have to be borne by taxpayers and the broader society.

Some observers think that’s the plan all along. Overwhelm the criminal justice system and simply stop jailing people. Crimes like burglary, robbery, and battery would be relegated to being minor offenses like traffic violations since holding almost all defendants would be prohibitively expensive.

There’s a big problem with this approach. Assault, robbery and burglary aren’t minor crimes and they are treated as serious crimes as a way to prevent their occurrence. If punishments and accountability recede, just as night follows day, a surge in these crimes of violence would occur.

This is obvious to most Americans.  It’s for that reason that organizations with this radical vision try to downplay their goal.  Take the Houston-based Laura and John Arnold Foundation. They’ve been traveling across the country promoting what they call their Public Safety Assessment tool — a means of scientifically sorting defendants into categories for either pre-trial detention or release with no bond.

Their “tool” overwhelmingly recommends release with no bond. And in the places where it’s been tried the results have been very disturbing. Take New Jersey — after the program was set up and financial bail was eliminated Jersey City police officers complained about a rash of rearrests of people with a history of gun violence who’d been released rather than detained.

A murder of a famous San Francisco photographer made international news last year when it was discovered that his assailant had been released thanks to the Arnolds’ pre-trial detention tool.

This summer, a 23-year-old in South Carolina charged with felony handgun possession was given a no-bond release and ended up stealing a police car from the jail parking lot.

And earlier this year a New Mexico a 22-year-old with a lengthy prior record who’d been arrested for auto theft was released with no bond and, in less than a week, violently raped a 59-year-old.

Notably, bail is a constitutional right. Under the Eighth Amendment, defendants are guaranteed that they will be considered for bail.  And bail allows society to balance the risk to the community with the presumption of innocence for the individual.

Moreover, the record of success with finance-backed bail is quite remarkable. The overwhelming majority of peer-reviewed studies show that bail works to see to it that defendants show up for trial and not re-offend prior to doing so. Those same studies show that release without a financial bond has an appalling success rate.

Our criminal justice system could definitely use some reform. Making things worse for victims and the public is regress, not progress.

Horace Cooper taught constitutional law at George Mason Law School in Virginia and served previously as senior counsel to U.S. House Majority Leader Dick Armey.


The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.

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