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Stop jailing those accused of low-level, non violent crimes before trial

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One might assume that locking up more people before trial is necessary to keep criminals off the streets. But in most of the country — as those of us in law enforcement know too well — someone’s ability to afford bail decides who returns home to wait for their day in court, rather than whether they pose a threat to the community. This is more than just a miscarriage of justice — it constitutes a threat to public safety.

When people are charged with a crime in most cities and states, the court assigns them a money bail that they can pay to get out of jail before their trial. Some can afford to pay bail and others cannot. But too often a defendant’s ability to buy their freedom correlates little to the level of risk that police, prosecutors and a judge feel he or she poses to the community.

Money bail systems allow violent and high risk individuals to end up back on the street. On average, research shows nearly half of defendants who are likely to commit crime before trial or skip court are released under effectively no oversight – simply because they could afford bail. In Chicago, for instance, a recent study from Cook County Sheriff Tom Dart showed that defendants facing gun charges — most alleged gang members — have access to the cash necessary to quickly gain freedom even when judges set high bail amounts. Many of these dangerous defendants returned to communities plagued by violence. According to the study, the neighborhoods where gun defendants posted the highest amount of collective bail were also the ones most prone to repeated shootings.

At the same time, these bail systems regularly leave low-risk people behind bars. Three-fourths of pretrial detainees are accused of property, drug, or other nonviolent offenses. This bail trap mostly ensnares low-income people and people facing mental illness or addiction, rather than the violent offenders we work hard to keep out of our communities.

Money bail drives unnecessary incarceration to staggering costs. Pretrial detention accounts for 95 percent of the growth in jail populations nationally since 2000. On any given day, there are 450,000 people in America’s jails sitting and waiting for their day in court, most of whom are there only because they cannot afford bail.

These people have not been convicted of a crime — some will ultimately have their charges dropped or found innocent at trial. Yet, taxpayers spend approximately $38 million a day to jail them. Annually, this adds up to approximately $14 billion, meaning we pour the same amount of money into ineffectual and often unnecessary pretrial incarceration every year as the total amount the Department of Justice has invested to advance community policing in the past 23 years.

Money bail might be standard practice, but it’s an ineffective tool to protect public safety. A few states have already taken steps to move away from money bail.

New Mexico voters overwhelmingly approved a constitutional amendment in November that bars judges from detaining low-risk defendants simply because they cannot afford bail. Kentucky and New Jersey have shifted from bail towards personalized, data-driven risk assessments that better predict who is likely to commit a crime pretrial or skip court dates. Since New Jersey eliminated money bail and switched to risk assessment, crime has fallen in the state and their jail population has dropped by 30 percent.

This summer, Senators Kamala Harris (D-Calif.) and Rand Paul (R-Ky.) introduced the Pretrial Integrity and Safety Act, a bipartisan bill that would encourage other states to replace money bail with risk-based decision. It would provide $10 million in grants to help states devise the most effective policies that work best for them. This will help more states ensure that jail beds are used more appropriately — only for people who present a danger to our communities. That’s why I have joined members of Law Enforcement Leaders in urging Congress to pass this bipartisan legislation.

It’s time to rethink pre-trial justice in America. The Pretrial Integrity and Safety Act is a good first step – catalyzing urgently necessary reforms without mandating states apply a one-size-fits-all solution from Washington. Instead of spending more on jailing those accused of low-level, non violent crimes before trial, they would be better directed towards fighting violence in cities struggling across the country, like Chicago. As more states start to fix their bail systems, we can begin to concentrate on what really matters: reducing crime.

Ron Davis is the Former Director of the Department of Justice’s Office of Community Oriented Policing Services (COPS), the Former Police Chief in East Palo Alto and a member of Law Enforcement Leaders to Reduce Crime & Incarceration.

Tags Crime Criminal justice reform Jail Rand Paul

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