Debtors prison: a practice that was outlawed by Congress and ruled as unconstitutional by the Supreme Court, yet, remains alive and well in most states — but California is the latest state to begin pursuing a change to this framework. Hidden under the guise of the cash bail system, our modern day debtors prison could easily appear as a fair part of our overall judicial system.
The right to bail is recognized as a cornerstone of our law structure, due to its explicit recognition in the U.S. Constitution and affirmation from the Supreme Court. But dive a little deeper, and you’ll discover that the current bail system gives a fair shot at justice to only a certain tier of people: the wealthy. Meanwhile, from the beginning of their encounters with the justice system, low-income folks charged with crime are set up for failure merely because they lack accessible funds.
Individuals charged with a crime should not be locked up before being proven guilty — they ought to be presumed innocent until a verdict is delivered. Yet, low-income people who can’t afford their bail are forced to sit behind bars, severely limiting their ability to keep their jobs, housing, and relationships with family and friends — sometimes for months on end while awaiting a trial. Out of frustration and a need to move on with their lives, many of these individuals declare themselves guilty by agreeing to a plea deal before ever even reaching a trial. These issues are non-existent for the fortunate who can afford their bail, alongside the costs of moving forward with trial.
To address some of these gross disparities, California is attempting to join the ranks of criminal justice reform leaders including New Jersey, Arizona, Utah, and other states and cities that have decided to stop the heavy reliance on cash bail. They’ve chosen, instead, to utilize a practice which requires that pre-trial decisions be made based on facts about each individual defendant. California’s system differs by completely abandoning their statewide cash bail system.
When California Gov. Jerry Brown signed Senate Bill 10 into law on August 28th, he took a step toward giving every Californian a fair opportunity for pretrial justice — regardless of wealth. “Today, California reforms its bail system so that rich and poor alike are treated fairly,” Governor Brown told the press. But while this end to the cash bail system is a monumental reform, it’s currently without the proper policies to ensure that individuals’ pretrial rights aren’t compromised. Still, fairness in full has not been achieved.
Rather than relying on cash bail, SB 10 tasks counties with creating a “risk assessment analysis” to evaluate those charged with a felony. The test predicts the defendant's flight risk and tendency to re-offend. It’s intended to grant a pre-trial release to those determined low risk, but mid-level risk cases have no guaranteed outcome. High-risk individuals are likely to remain incarcerated.
Initially, SB 10 garnered support across the political spectrum by aiming to accomplish this end. But many groups — including the ACLU — have rescinded support due to amendments which they believe will only do the opposite.
For instance, the bill now declares that there shall be a “rebuttable presumption” that public safety is endangered unless a large number of certain individuals is detained pre-trial. This could mean an increase in detentions for those who may have otherwise had a charted, legal course to freedom prior to their conviction. In the end, it will be the standard deeming individuals “medium” and “high” risks that will determine whether someone experiences incarceration instead of freedom.
States should recognize that when implemented correctly, a risk-based assessment tool can be a solution to the current bail problems that result in the perpetuation of debtors prison for those who can’t pay. But it can just as easily be a problem. Indeed, a wealth-based system will trap the innocent, yet a poorly-planned system will do precisely the same.
As more courts across the country consider pretrial reforms, they should look to New Jersey as a state who has done it right. Since the implementation of a pretrial risk assessment test in 2016, crime in the state has decreased by 10.8 percent and violent crime has dropped by 17.2 percent. And instead of relying on incarceration, they set up different tools for a pretrial monitoring that is still dependent on risk — allowing the public to breathe easy. These results show that when implemented with correct safeguards, risk-based assessment tools can be used without compromising public safety.
Changes to the bail system are desperately needed in order to reduce jail populations, save taxpayer money, and ensure due process so low-income individuals don’t suffer as a result of a failure in the justice system. California’s intended reforms may have started out on the right path, but now its leaders need to work together to evaluate and alter the detrimental changes to SB 10. While securing public safety is a goal of many lawmakers, they must never forgo individual liberties when adopting new laws — even for those behind bars.
Molly Davis is a policy analyst at Libertas Institute, a free market think tank in Utah. She is also a writer for Young Voices, a nonprofit based in Washington, D.C. that works to promote free-market policy.