Sandra G. Mayson —
Ending money bail will not itself produce an effective and just pretrial system. The wonderful prior posts in this series have explored several reasons why this is so. I would like to add one more: Ending money bail will not itself produce justice because we have been using money bail, and the detention it produces, to meet a host of social needs. Forsaking it will require us to find better ways to meet them.
The purported function of money bail is release. It is supposed to balance our competing interests in liberty, security, and the effective administration of justice by ensuring that people at liberty show up for court. In fact, though, money bail also operates as a mechanism of detention. And we have been using it that way: to detain those who seem dangerous, to inflict punishment, to encourage guilty pleas, and to impose short-term restraint on disruptive people. Sometimes we have done these things intentionally. Sometimes we have done them inadvertently. What we have not done is admit what we are doing. The apparent rationality of a financial incentive mechanism has obscured the functions that money bail actually serves. It has enabled us to use jails as a first-line response to social problems without deliberation, accountability, or acknowledgement.
Ending money bail will eliminate a profound source of inequality in the criminal legal system. But it will also expose the difficult social, political and legal questions that money bail has obscured. At risk of oversimplification, here are a few of them.
(1) When is detention justified?
Most obviously, perhaps, we have been using unattainable money bail to lock up people whom magistrates deem too dangerous to release, without anyone having to put that judgment on the record and bear responsibility for it. Absent money bail, we must make intentional decisions about when to restrict a person’s liberty to mitigate risk. But what degree of risk—of what kind of harm—is sufficient to justify depriving a person of liberty? Is the answer different for an accused person than for anyone else? As I have argued elsewhere, if we take the presumption of innocence and prohibition on pretrial punishment seriously, these answers should be the same.
Presuming that we are willing to value the liberty of accused people in the same way we value our own, there remains the question of what sort of risk—what likelihood and what severity of harm—can justify detention, if nothing short of detention is adequate to manage the risk. Don’t look to the law for easy solutions! Even federal constitutional doctrine offers no more than vague guidance, for now. Ultimately, judgments about what kind of risk justifies detention must come from communities themselves.
(2) How should we respond to risk?
Part of the answer has to be that detention is never justified if some measure short of detention can adequately mitigate whatever risk an accused person presents. A central question for the new bail systems, perhaps the central question, is what other approaches to risk we might take. That question is tied up with race. The most prominent concern with risk assessment tools is that they will perpetuate or exacerbate racial inequality in the criminal justice system. The concern is well founded. It assumes, though, that the system will respond to risk with coercion. That need not be the case. If we understand risk, in the aggregate, as a product of structural inequality, we might seek to support those at risk rather than ostracize them. We could strive to understand and remedy the conditions that give rise to risk in the first place.
(3) Can we shrink the system?
A second function that money-bail systems have been serving is as a check on the volume of cases that go to trial. Money bail produces pretrial detention, and pretrial detention produces guilty pleas. Whether or not any actor in any legal system sees it in this way, money bail helps the system manage volume. Perhaps forsaking money bail will finally force us to confront the unsustainable scope of criminal law enforcement and take action to shrink the system. The most obvious site for intervention is upstream, by reducing arrests. Why arrest, after all? Which behaviors do we actually need to prosecute? And which prosecutions do we actually need to initiate by arrest, as opposed to citation or summons? Decriminalization and citation-in-lieu-of-arrest initiatives are underway in many places. But we have not yet engaged in the kind of fundamental rethinking of criminalization and the arrest power that we should.
(4) How should we hold people accountable for wrongdoing?
Anyone with passing knowledge of the criminal justice system also knows that money bail, and the detention that results, has been functioning as punishment. Some people appear to see it as the only reliable, coherent punishment the system can dispense. Hence the outrage in certain quarters at “catch-and-release” bail reform policies perceived to let criminals off free. On the most charitable interpretation, this outrage springs from a legitimate sense that, absent pretrial incarceration, the system cannot be trusted to hold wrongdoers accountable in any meaningful way. Perhaps this interpretation is too charitable. Yet there is a widespread sense that punishment in our criminal legal system is highly uncertain and often arbitrary. To me it is not implausible that we have been relying on pretrial punishment to meet the felt need for accountability. If we are going to stop, we should think seriously about how to do better at ensuring meaningful accountability for those who commit harm.
(5) How should we handle disruptive people?
Last, but not least, jails have come to serve as de facto mental institutions, detox facilities, and short-term repositories for people whom police need or want to remove from the streets. Police arrest people for low-level public-order offenses that no one has much interest in prosecuting (disorderly conduct, public intoxication, trespass, and the like). They are dismissed at astronomical rates. Yet there is no movement afoot to decriminalize these offenses. That is because they serve a function. We need some mechanism to manage public disorder. And in places like New Jersey that have implemented bail reform, police are flummoxed by the fact that the stricken and disorderly people they arrest are back on the street a few hours later. On the basis of anecdotal evidence, this seems like an important factor in law enforcement resistance to bail reform initiatives nationwide. Reformers should not discount it. If we are going to stop using jails as a repository for intoxicated and disruptive people, as we should, we are going to need an alternative.
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It is well past time to confront the many functions that money bail has been serving, and to wrestle with the hard policy questions that it has so conveniently obscured. The first generation of bail reform, in the 1960s, notably failed to achieve lasting change. This one can do better. But to do better we need a better understanding of why people commit harm and how best to prevent it. We need real constraints on detention, including detention on unaffordable bail. We need to shrink the system and rethink the kind of accountability it provides. We need to figure out how to handle addiction and mental illness. The best ideas and responses will not come from the ivory tower. They’ll come from the communities most affected by crime and jailing alike.
One point worth considering as we embark on this project is that maybe the terms of the current bail debate rest on a false premise. Perhaps the interests at stake in the pretrial process are not competing at all, or at least are less frequently in conflict than we assume. Maybe the best way to promote collective safety and the effective administration of justice, most of the time, is not by compromising individual liberty but by enhancing it, through the kind of community support for both the victims and perpetrators of harm that my co-bloggers in this series have been working so hard to provide. For most of history, after all, the “sureties” on which the pretrial system relied were not cash bonds but human beings, members of the community willing to take responsibility for the appearance and good behavior of the accused. Somewhere along the way we lost the capacity, or the will, to take responsibility for our own. If this generation of bail reform does achieve lasting change, it will be because we take on that responsibility again.
Sandra G. Mayson is an assistant professor of law at the University of Georgia School of Law.