Matthew T. Mangino: Rethinking bail: Protecting the public and the pocketbook
Even as local government budgets become leaner, policy makers struggle to balance the ledger. One area of spending continues to be a burden with no real end in sight—corrections.
A significant amount of local revenue goes toward corrections—the local county jail—and half of those costs can be attributed to inmates in pretrial detention. Those are individuals who have been arrested, accused of a crime—not convicted—who remain in jail awaiting trial.
Pretrial detention increased at the same time “get tough” policies drove prison populations to unprecedented heights. In the 10 years between 1996 and 2006, the number of people held in pretrial detention in local jails increased by more than 20 percent. According to a study by Northwestern University, fewer people were released pretrial without bail and fewer were granted bond.
The primary purpose of bail is to insure that the defendant appears for all future court proceedings. Bail is not punitive, its purpose is administrative. Many pretrial detainees are low-risk defendants, who, if released before trial, are highly unlikely to commit other crimes and very likely to return to court. Others present moderate risks that can often be managed in the community through supervision, monitoring, or other interventions.
Failure to grant pretrial release may come in the form of setting a bond that is beyond the defendant’s ability to post. Bond need not be a million dollars to be excessive. For some defendants a $2,500 bond, that may require a $250 payment to a surety company, is beyond reach.
What does that mean for taxpayers? If a defendant with a $2,500 bond can pay $250 he is out and on the street. If not, taxpayers are on the hook.
The United States leads the world in the number of pretrial detainees, according to a report by the National Institute of Corrections, an agency of the Department of Justice. The report found that, at midyear 2011 about 61 percent of inmates in local jails were not convicted, they were awaiting court action on a pending charge—a rate that hasn’t changed since 2005—at an estimated cost of over $9 billion per year.
Some defendants being held pretrial belong in jail. Some are not eligible for bail, some are a legitimate flight risk and others a danger to society. However, some just can’t afford a monetary bond.
“It sets up a system where first there’s the punishment, and then there’s the opportunity to go to court for trial,” Paul DeWolfe, the Maryland state public defender, told the New York Times.
Though monetary bonds has long been the law in a majority of states across the country, the practice is coming under increasing scrutiny in the face of recent research that questions its effectiveness and bipartisan efforts to reduce incarceration rates and correction costs.
Detaining an accused pre-trial also has a detrimental impact on families, employment and the viability of neighborhoods and communities disproportionately affected by the criminal justice system.
According to the Times, Colorado and New Jersey recently voted to overhaul their bail systems. In several states, including Connecticut, New York and Arizona, either the state’s chief justice or lawmakers are calling for change to pretrial detention practices.
The first step toward easing the cost of pretrial detention is the ability to determine who needs to be detained and who doesn’t. The Department of Justice suggests a “focus on individualized assessments of risk, as opposed to making categorical assumptions based solely on charging and other factors.”
Once courts have the tools to determine who should be detained the system can explore detention diversions for those who don’t need to be in jail. House arrest, electronic monitoring and day reporting are all much more cost effective—and just as safe—than locking away a defendant awaiting trial.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.