You know there is a need for “reform” when all sides of the political spectrum join forces in demanding it.  The staggering expense of incarceration has compelled both liberal and conservative elected officials and advocacy groups to stand together in public forums to make arguments in favor of reforming our tattered and disheveled criminal justice system.


Bi-Partisan Calls for Reform


While “sentencing reform” has drawn the lion’s share of attention, the need for reforming the nation’s bail system has been quietly gaining traction.  For example, in April 2015, conservative New Jersey Governor, and former New York Assistant U.S. Attorney, Chris Christie penned a piece for the liberal advocacy group The Brennan Center for Justice in which he outlined the need for bail reform:


“Our nation’s criminal justice system has failed us in many ways. Too often, we let violent criminals slip through the cracks while ensnaring nonviolent – and sometimes innocent – people behind bars. For New Jersey, this situation has played out most acutely in our bail system. Our system has allowed people who committed serious, violent crimes, and continued to pose a clear danger to the community, to be back on the streets while awaiting trial. At the same time, we kept those who committed minor, nonviolent offenses behind bars simply because they could not afford to pay a minimal bail amount. These people sat in jail for an average of 10 months while violent people, who could afford bail, walked free, further exemplifying how dysfunctional the system has become.”


Gov. Christie was seeking the Republican presidential nomination when he made his call for bail reform which is clear and convincing evidence of just how broken this component of the criminal justice system is. As a historical rule, the demand for a criminal justice reform that would release prisoners by a presidential candidate is relatively unheard of.


But that is a measure of just how broken the bail system is. The month after Christie’s piece was published, the Illinois Legislature passed a bill that would allow for nonviolent offenders—those charged with petty crimes like trespassing and retail theft—to be released without bail if their case has not been resolved in 30 days. The bill was supported by victims’ advocacy groups and prosecutors—forces generally committed the failed penal policy of “lock-em-up-and-throw-away-the-key.”


Law Enforcement Calls for Reform


Cook County Sheriff Tom Dart, who proposed the legislation, told the media that “these folks are nonviolent, not dangerous … They are [in jail] because of inertia built into a large system.”


The Cook County Jail houses some 8,800 inmates—most of whom are pretrial detainees and many of whom could be released on either personal recognizance or electronic monitored bail.


Two months later,  liberal New York Mayor Bill de Blasio launched a similar “bail reform” program designed to release 3,400 pretrial detainees of the city’s annual 45,000 detainees under “monitored supervision” until their cases ran the gauntlet of an overcrowded court system.


Americans have become complacent about accepting a criminal justice system that graciously responds to those of wealth and privilege while harshly treating the ranks of the poor and disadvantaged.


Desperate Treatment


This observation was made in none other than the conservative, right-wing leaning online publication, The Federalist, by senior contributor Rachel Lu, a Robert Novak Fellow, who said:


“Bail really has become a problematic feature of our criminal justice system. In the O.J. Simpson years, we heard a lot about rich fiends who got away with murder because they could afford crack defense teams. As it turns out, though, bail may mark the more significant line between the haves and the haves-not. If you can make it, you’re far less likely to spend months or years in the slammer. You’re also more likely to get off altogether. These are only the most obvious defects in the pre-trial proceedings of most states and counties.”


Bail Reform in Texas


The call for bail reform has even made its way to Texas, a state whose extremely rugged opinions about criminal justice are seldom amendable to “reform.” In an April 21, 2016 UT News piece, Linda Frost, Director of Planning and Programs for the Hogg Foundation on Mental Health, called for “change” in the state’s bail system.


“It seems like a simple series of events,” Ms. Frost wrote. “Someone is arrested and charged with a crime. They have a hearing. The judge orders bail in order to either keep them off the street if they are considered dangerous, or to increase the odds that they’ll show up for court. End of story.


“What’s obscured by that simple and deceptive story is that the actual bail system in Texas (and nearly every other state) too often serves to punish poverty, exacerbate mental illness and burden the state with unnecessary costs while failing to make the public any safer.”  A fairly harsh but incredibly accurate assessment of the Texas bail system.


Houston Has a Problem


A June 28, 2015 piece in the Houston Chronicle pointed out that three-quarters of the 6,600 detainees in the Harris County Jail were pretrial detainees who each cost taxpayers $45 for every day they spent awaiting resolution of their cases. The Chron article, written by Brian Rogers, opened with these observations:


“Those prisoners are there because they can’t afford to pay bail – the debt a judge imposes to make sure defendants return to court.


“Advocates for bail reform said the system can be burdensome for low-income defendants, saying it inhibits their ability to go back to work, support their families and aid in their own defense.


“Leaders at both the local and state level are looking for ways to change that, possibly allowing defendants charged with lower level crimes to remain free without bail, but with a pledge to return to court. They will use a screening process that can predict whether defendants will return to court or if they might commit more crimes if released.”


Harris County’s Bail System Stinks


In his op-ed published in Reasonable Doubt entitled “Harris County: Your Self Praise Stinks,” defense lawyer Robert Fickman sums it up succinctly: “It’s real simple.  So long as the judges systematically deny PR bonds, the poor will remain in jail.  The poor will continue to be forced to plea guilty to obtain their liberty.”  PR bonds, personal recognizance bonds, allow defendants to be released, along with some restrictions, on their promise to appear without the requirement of payment of security.


It is abundantly clear, regardless of the political perspective from which it is view, that low-risk, nonviolent offenders who commit petty larceny are punished because of their poverty (or general lack of financial resources) while those who have the resources are allowed to remain free on nothing more than a signature, allowing them maintain employment, preserve family ties, sleep in their own beds and, most importantly, to consult with their  lawyers about the criminal charges pending against them without the pressure to plead guilty to resolve their case.


The tragedy is that both classes of pretrial detainees are just as likely to remain crime-free on bail, return to court when ordered to do so, and face justice on the criminal offenses brought against them.


The nation’s bail system, especially in Texas, is woefully broken…