The paradox of bail reform

The Chief Judge of the New York court system, Jonathan Lippman, was correct in his State of the Judiciary speech last week that the bail system is both unfair to the poor and unsafe for the public. That paradox is not new; there was a pass at bail reform in the 1960s, pushed by then Attorney General Robert F. Kennedy. Time has not cured the problem.

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The paradox then and now is that poor defendants are jailed because they cannot afford bail, and dangerous defendants are freed because they can.

Key to remember is that the denial of bail results in the incarceration of poor defendants before they have been tried and convicted. Jailed defendants fare less well in rates of conviction and levels of sentencing, and they endure harsh conditions of incarceration before conviction in jails, many of which are worse than the prisons where convicted convicts are imprisoned.

At the same time, because of the criticism of the preventive detention of dangerous defendants, not scientifically provable to be dangerous but clearly so in the imperfect judgments of savvy judges, dangerous defendants go free on bail and often commit further crimes.

We have, then, the worst of both worlds.

And that paradox is compounded by the critical role in this process played by bondsmen who are in charge of providing bail, though they are not officials of the criminal justice system. The Vera Institute of Justice and other court and justice organizations have documented these problems, but they persist.

Civil libertarians have questioned the practice of setting bail, even low bail, for defendants who don’t have the resources to pay it, and thus end up in jail, often for prolonged periods. They are, in effect, imprisoned for being poor. Some plead guilty in order to get out of jail, studies have shown.

On the other hand, these same civil libertarians criticize judges who practice preventive detention, which is considered an unconstitutional imprisonment without trial, based on the presumption of guilt. Critics claim judges cannot predict who will commit a crime in the future while free before trial.

Experienced court officials believe they can apply logical conclusions based on their experiences — but they admit there is no science to their predictions.

What is needed are procedures whereby no defendant is jailed solely because he or she hasn’t the money for bail, and procedures whereby, based on open adversarial hearings, dangerous defendants can be detained — under decent conditions and for abbreviated times — based on reasonable predictive standards. Because truly dangerous defendants with resources can afford bail, and are released to commit further crimes, many judges practice preventive detention sub rosa by setting bail high enough to preclude defendants from making bail.  It would be fairer to do it above board and with clear limitations and protections.

Studies have shown that the cost of jailing defendants pretrial are greater than costs of community-based programs on economic grounds.

After the National Bail Conference sponsored by the Kennedy Justice Department, a federal law was signed by Lyndon Baines Johnson. The hope was that it would be a national model and the paradoxes of the bail laws would be cured. I have my pen and photo to memorialize that moving event. But the paradox continues. The problems persist. The costs — human and economic — remain manifest. One wonders: what does it take to bring about the rational reforms Chief Judge Lippman has asked for?


Ronald Goldfarb is a Washington, D.C., attorney and author. His award-winning book on bail reform, Ransom: A Critique of the American Bail System, was introduced by Supreme Court Justice Arthur Goldberg and further described in his New York Times Magazine article “A Brief for Preventive Detention” (March 1, 1970).