Third Time is Not the Charm for Failed Bail Reform Movement

other liberal democracies such as Canada, Australia, Supreme Court has effectively held can be limitless. and England. A question that should haunt all of us Incredibly, courts have also approved the practice is whether we would pursue that many convictions if of threatening to indict (or refrain from indicting) we had to pay the full constitutional cost—including a defendant’s family members just to exert plea a jury trial—for every one of them. The oft-heard leverage. Short of physical torture, a more coercive refrain that “the system tactic is difficult to imagine. would grind to a halt” The Founders were without plea bargaining The most significant problem no strangers to tyranny, strongly suggests that the answer is no. with a plea-based system is the and they would recognize it instantly in a system

Finally, the practice of use of coercion to obtain that depends on people to inducing people to condemn guilty pleas. confess their guilt instead themselves is an inherently of proving it beyond a squalid business that has reasonable doubt to the been embraced and abused by the worst regimes satisfaction of a unanimous jury. Citizen participation throughout history. This is manifested in various is indispensable to the administration of criminal plea-bargaining practices, including the notorious justice. The Framers knew this, and they wrote it “trial penalty,” which is the differential between the into the Constitution with unmistakable clarity. Or sentence offered to the defendant if he pleads guilty so they might have thought. RF versus the sentence he is threatened with if he goes to trial and loses—a differential that routinely exceeds Clark Neily is Senior Vice President for Legal Studies three hundred percent in our system and that the at the Cato Institute.

Our Pretrial System Needs to be Torn Down and Rebuilt

by MEGAN T. STEVENSON

Presumed innocent and unconvicted, almost 75% of the U.S. jail population sits in jail awaiting a hearing or trial. They sit in overcrowded concrete cages lacking in air-conditioning and stained with feces. Like in a dystopian science fiction novel, the sole legal justification for their incarceration involves speculation about what they might do if released.

Our Founding Fathers were so concerned about governmental threats to liberty that they placed numerous barriers to protect it. The right to due process. The guarantee of a jury trial. Prohibitions against excessive bail.

It should be hard for the government to take away someone’s freedom; especially so when a person has not been convicted of any crime. The government should have to provide persuasive evidence that a defendant poses an immediate risk of serious crime or flight. Moreover, the government should need to demonstrate not only that such risk exists, but that there are no less restrictive alternatives than jail that could prevent the threatened harm.

Current practice eviscerates these standards. Our pretrial system is a Kafkaesque regime in which the government has almost unmitigated power to detain.

Bail is determined in assembly-line fashion. Each bail hearing lasts only a minute or two.

Defendants have no opportunity to speak in their defense. They have no access to counsel.

The prosecutor is not required to present any evidence. (cont’d on page 23)

The presiding magistrate – often not even a judge or lawyer – takes a quick glance at the charges and sets bail. This number then determines that person’s freedom. If they can come up with the nonrefundable 10% deposit required by the bail bondsman, they go home. If not, they sit in jail. And when the prosecutor comes to offer them a “plea deal” they take it. I put “deal” in quotes because a deal suggests a negotiation between equal parties. A defendant in his cell has no bargaining chips. He takes what’s offered, particularly if it gets him out of that cage. You may be tempted to believe that the administration of criminal law is some sort of governmental unicorn – thorough, effective, and unlikely to err. That these people are Megan T. Stevenson getting what they deserve, even if the procedure is a little slapdash. Well, anytime you have a bureaucratic assembly-line

It should be hard for process, errors will be rampant. the government to take As an example, consider the hundreds of people in Harris away someone’s freedom; County, Texas who pled guilty especially so when a to drug charges based on errorperson has not been prone drug tests administered in the field. These people were convicted of any arrested, detained, and offered a crime. plea deal that allowed them to go home. They took it. Later, lab tests showed that they were innocent. But the exonerating results – sent by email to the district attorney – were either never read or never followed up on. The false convictions were allowed to stand for years. And it was only a rare confluence of events – a

Third Time is Not the Charm for Failed Bail Reform Movement

by JEFFREY J. CLAYTON

The third generation of bail reform is over. Like the second generation, it was unsuccessful. This time, the notion that jurisdictions can simply eliminate bail and move to some alternate concept of release from jail proved to be a mistake.

A quick review of what triggered this latest attempt at bail reform provides insight into the mistakes made and the most appropriate policy response.

In the early 1980s, Daniel Freed, a professor at Yale University, served as one of the principal architects of the nomoney bail system, the “second generation” of bail reform first implemented in Washington, DC. He would eventually conclude that his experiment was a failure. He saw that denying bail or eliminating it altogether resulted in mass incarceration while having no positive effect on public safety.

Although his experiment failed, Freed focused on the right issue when he asked Congress a simple question that is still relevant today: What do we know that empowers us to eliminate a fundamental constitutional right that the Founders of this nation and the drafters of the Judiciary Act of 1789 did not know then? In the 1980s, Congress apparently answered that question by concluding that some people were just too dangerous and simply should not be offered bail. The result of that decision embraced in the Bail Reform Act of 1984 is that the percentage of defendants kept in jail pending trial has gone from 24 percent in 1983 to 75 percent in 2021. Thus, bail reform has led to a massive increase in pretrial incarceration at (cont’d on page 23)

the federal level. Meanwhile, studies for a generation have failed to prove that denying the right to bail has any impact on crime. Confoundingly, many reformers continue to argue for the federal model, even though the process of setting and posting bonds has proven to be effective. So why do some still argue for the eradication of bail? To eliminate racial disparities in pretrial detention, they say. This is why New Jersey moved to its no-money bail system. Unfortunately, despite the expenditure of millions of dollars, the Garden State’s racial detention disparities are the same, with one caveat: anyone who is detained can never have the opportunity to post bail. To avoid that outcome, New York State, among others, embraced universal release and the elimination of bail. The results were dismal. Under bail Jeffrey J. Clayton reform laws implemented in 2019, persons of similar risk who were released committed new

The notion that crimes at a rate of 41 percent. jurisdictions can simply Had they posted bail, the figure eliminate bail and would have been approximately move to some alternate 19 percent. concept of release from The disastrous consequences jail proved to be a of the New York reform policy that forced release and overruled mistake. judicial discretion has made national headlines. In the process, what became clear is that eliminating bail without other protections doesn’t work: both pretrial crime and failures to appear in court increased substantially. So what is the solution to achieving truly fair and effective bail reform? First, recognize the right to bail by our Founders. A thousand years of English common

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