Is a ‘Common Sense’ Approach to Bail Reform Finally Gaining Traction?

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Photo by Paul Sableman via Flickr

Only three percent of federal and state criminal justice cases result in a trial. The rest—97 percent—are settled pretrial, often by plea bargain.

Three percent is a shocking figure for a nation that considers trial by a jury of peers a fundamental right. Our rhetoric clearly is not aligned with reality.

A new national poll on pretrial justice, independently analyzed by the Pretrial Justice Institute and the Charles Koch Institute, shows Americans want to close the gap between how we talk about justice and what we deliver. The survey of 1,400 registered voters, conducted in May 2018, reveals that voters across a broad demographic and geographic spectrum believe the system needs to change.

Only six percent of respondents were satisfied with the status quo. Nearly one in five would scrap the current system and start over.

The U.S. criminal justice system is a maze: Once someone’s in, it’s hard to get out—and pretrial is the front door. Our analysis of the data reveals that while there is ample room for the public to learn more about pretrial processes and procedures, voters intuitively recognize a need to reduce unnecessary arrests, restrict the use of jail pretrial, replace money bond, and raise equity.

Moreover, as they learn about the common-sense solutions available, their support grows.

One of the biggest takeaways from the poll is that Americans want to reduce the number of people entering the system by adding alternatives to arrests and limiting the use of jail except as needed for public safety.

Seventy-three percent of respondents—87 percent among black voters, 75 percent among Latinx voters, and 71 percent among whites—favor reducing the number of arrests for low-level, nonviolent offenses. Seventy-six percent indicate that citations informing people of their obligation to appear in court would be a better response to low-level, nonviolent offenses than arrest.

Similarly, while 83 percent of survey respondents would allow judges to detain a person charged with a serious violent crime when necessary for public safety, respondents want limits on the system’s ability to jail people whose alleged guilt has not been proved—especially those charged with minor offenses.

Only 36 percent would allow courts to hold arrested people regardless of the severity of their charges. Voters by a two-to-one ratio think prosecutors should bear the burden of showing that a person should be in jail before trial.

One reason the system currently defaults to jail upon arrest is the use of money bond, which requires arrested people to pay money to be released before trial. Given this obvious bias toward those with money, it should not be surprising that 79 percent of respondents think the wealthy enjoy substantially better outcomes from the criminal justice system than do poor and working-class Americans.

Seventy-two percent of respondents think public safety should be the primary consideration, instead. The same percentage, 72 percent, would limit how many days people not charged with serious violent crimes can remain in jail before trial if they cannot afford money bond.

Perhaps the biggest surprise from our analysis is the support we found for services to help arrested people succeed in the community. More than three out of four voters would provide support services for people awaiting trial in the community who have substance-use difficulties.

Nearly nine out of 10 would provide support to people awaiting trial who are victims of domestic violence or who have mental health needs.

More than 60 percent of the people in U.S. jails and prisons are black or Latinx. Studies have found that black Americans face higher bail amounts and are less likely to be released on non-monetary conditions than similarly situated white individuals.

Other research indicates that being black can increase an arrested person’s odds of being held in jail by 25 percent.

Fifty-six percent of those polled believe whites have better outcomes from the system, with 78 percent of black voters, 74 percent of Latinx, and 50 percent of white voters in agreement. Asked which was fairer to people of all races, money bail or community supports—such as court reminders and referrals to services, as well as supervision—nearly half of all respondents, or 48 percent, favored supports; just 29 percent felt money bail was fairer.

But there is still a long way to go to educate the public on this issue.

Despite the media’s increased coverage of pretrial and money bail in recent years, 51 percent of respondents said they know only a little or nothing at all about money bail. The silver lining was that, over the course of the poll, as people learned more about the alternatives to money bail, their support for moving away from financial conditions of release increased.

Cherise Fanno-Burdeen

This survey holds important lessons for stakeholders and lawmakers. The public wants change. In contrast to current practice, Americans would like pretrial systems to default toward release before trial except when necessary for public safety, and they favor community-based supports for those who are unlikely get arrested on new charges but may need help getting to court.

Jurisdictions and states contemplating change should be fortified by the knowledge that people are ready to support common-sense change.

Cherise Fanno Burdeen is the chief executive officer of the Pretrial Justice Institute. She welcomes comments by readers.

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