The elimination of a cash bail system has been a hot button topic for several years now. Advocates for abolishing cash bail say that it levels the playing field, allowing lower income defendants the equal opportunity to be freed pending hearings or trials. Opponents of ending the cash bail practice state that crime will surge, and it will empower criminals knowing they will have nearly no stint in a jail cell. So, who is right? Unfortunately, the answer is both.
A little background first
Full disclosure here—I work in the private court services profession. For those who are not familiar, companies like mine provide valuable services to courts, agencies, and law enforcement to help supplement short falls in funding and staff resources by handling certain responsibilities for which those public entities are not equipped to handle. We perform functions like drug testing, location monitoring of individuals, alcohol monitoring, and even supplemental case management where warranted. Based on that, you would think that my opinions are completely slanted to one side, but you would be surprised. Here are three things that the elimination of cash bail means for the community as a whole.
What Elimination of cash bail means
First, elimination of cash bail means someone charged with a small or petty crime will not be subjected to a long-term jail stay simply because they cannot come up with $1,000. This is a GOOD thing. Just like with any crime, or someone struggling with any issue, over-correction of the problem more often than not, leads to adverse effects. This is not to imply that a 16-year-old kid that steals a $300 gaming system from a store does not have to answer for those charges. But is keeping her locked up in jail with others that have committed fair more serious crimes really the right step? No, the answer is just no.
Next, bail was originally intended to secure someone’s return to court. Let us not lose sight of that. There are far better ways to get those accused of small crimes to return to court. Of course, there are challenges like lack of consistent residence, ability to reach the defendant and communicate effectively, and other issues. With the costs of housing a person in a local or county jail all over the map—as low as $60 per day to as high as almost $200 per day—does keeping someone locked up over a $1,000 bail, or even $5,000 bail make a lot of sense financially to the taxpayers? That answer leads into the last point.
Lastly, like it or not, no matter what “data” or “statistics” are cited by “experts” in the field, releasing people from jail without any sort of insurance that they return to court, or without any form of supervision, does in fact increase the risk to community safety. Period. End of discussion. Researchers claim that this last year surrounding COVID cannot be used as a barometer of the efficacy of the elimination of cash bail programs because of the pandemic, or unemployment, or whatever else they want to cite.
The fact is, that people arrested (not just detained) and far more likely to be guilty of the crime than they are to be innocent. For whatever reason that the crime was committed, that reason does not typically disappear after the initial arrest. Substance use disorders, anger issues, financial hardship, whatever the reason for the alleged crime, that reason does not magically disappear upon release without posting bail. So, unless the conscience of the defendant is the size of the Grinch’s heart at the END of “How the Grinch Stole Christmas,” no behavior was modified, and if not in jail, the behavior certainly is not prevented in the future.
This post could go on for 87 paragraphs, but let’s face it—our society has the attention span of a 140-character tweet. Any over explaining, or over arguing, or anything extra will just get lost. So, with that said, let’s move onto tying this whole thing together.
Why use jail in the first place?
I remember sitting in a conference with the former Director of the Michigan Department of Corrections, Patricia Caruso when I believe she quoted someone else (I am sorry I do not know who to attribute the original quote to exactly) as saying “We should keep people in jail that we are afraid of, not people we are mad at.” This is a very important distinction. And different people, or different groups of people may interpret alleged crimes differently.
If someone steals from a big-box retailer or a grocery store, we are mad at that person, but not terribly afraid—after all, it’s not like they used a gun or weapon, or threatened someone during the act of the crime. But, what if they did? Does that change our view on the severity of the crime? Does that change the view on bail? Oftentimes it changes the view from a legal and criminal perspective.
What if someone commits a sex crime, domestic abuse, or a physical assault? Those are people that I believe we would all agree pose a greater danger—those are the people we are “afraid of.” Do they get released from jail, no bail, no questions asked? How does the victim feel about their assailant being released? Are victims consulted on these decisions? Whose safety and protections garner the greatest concern?
Is there a solution?
There is no perfect solution to this issue. There are far leaning groups and opportunists that want to use the social disorder of the last year to say that cash bail should be thrown out. That no matter the crime, a person should not be held in jail simply because they cannot pay a set bail. That is until they are victims of the crime themselves—I’ve have seen it firsthand; how quickly the tables turn, believe me. Instantly in the blink of an eye, their situation is completely different and their offender all of a sudden does deserve to be in jail. There are also those hardliners that have the mentality of “lock them all up and let the court sort it out.” Those people are equally troubling to our judicial process. And yes, I have seen many of those folks too.
Until the opportunists acknowledge that the public demands at least some basic level of safety when negotiating the elimination of cash bail, we will be at an impasse. Until hardliners understand that a kid stealing a gaming system is not the type of person to whom a jail bed was most suited, then we cannot find a middle ground.
Bottom line: cash bail is a necessity at times. And denial of bail completely is nearly equally problematic. We will be put into situations where people will be denied bail for circumstances that previously were at least granted some type of bond. Like it or not, bondsmen do play an important role in securing people’s appearances for court. If the court had a financial incentive for people showing up for court, you can bet it would be different. For now, courts have a financial incentive for people to NOT show up because they get to keep the bond in most circumstances. We need cash bail. We also need the elimination of cash bail in a lot of circumstances. Much like any other hot button issue right now, each side can only feel victorious if they get everything they want. In fact, if either side wins the way they want to win, we—the community—lose.