The Ugly Truth About America’s Police State & What the Pretrial Justice Reform Initiative is Doing About It
Before you tell me that you’re not a criminal and so you don’t care about how we treat people accused of crimes, consider this: every single day, people step into my office who have never been accused of a crime either and but who are falsely accused of a crime or concerned that a close relative has been falsely accused of a crime. It can happen to you, and it probably will happen to you.
About the PRETRIAL JUSTICE REFORM INITIATIVE
- The Criminal Justice Institute (CJI) seeks to facilitate a dialogue among stakeholders to discuss rational pretrial justice policymaking at the State and County levels. To that end, the Institute has hosted a statewide symposium at the State Capitol in Austin in 2012. Since then, CJI has sponsored lectures and held meetings to further the study of pretrial justice and promote law reform.
Remember that people who are in jail have not been convicted of a crime. They have been accused. It does not take much for someone to be accused of a crime, sometimes just a telephone call from an angry ex or the anger of an unhappy cop. Many people who are in jail right now will never be convicted of the crime of which they are accused, and yet society has taken their liberty away for days, weeks, months and sometimes even years. Police and law enforcement abuse this authority to make people plead guilty. Who wants to wait in jail for years to prove their innocence when they can plead guilty and get out on probation today?
The Bill of Rights in the United States Constitution acknowledged this problem, as it has been abused since the dawn of government. In the Eight Amendment, the Constitution states simply:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
| Amendment VIII, United States Constitution
The purpose of requiring bail is to ensure that the accused person is held to stand trial for the accusation. It is not supposed to be used as a punishment or as a tool of oppression, although in fact this is how bail is used every day. Judges set bond amounts at amounts that poor people (and lots of times, even people with ordinary income) cannot possibly meet. This happens regardless of how strong the government’s case is. If you’re accused, you’re going to be stuck in jail, away from your family, losing your job and often your dignity at the hands of jailers. In Sandra Bland’s case, she lost her life. Sandra Bland would be alive today if Texas had bail reform.
The Problem: The Use of Financial Bonds
The primary method for determining whether a person remains in jail pending disposition of a criminal case is the person’s ability to pay a financial bond.
Here’s how it works: After arrest, Sandra went before a magistrate and a prosecutor, with no defense counsel present. The magistrate and prosecutor set a financial bond of $5,000 that she would have to pay to gain her release. They probably assumed that she could come up with the $500 fee (10%) that a bondsman would charge her to obtain her release. And let’s be clear: when a judge sets a financial bond, the judge is making a decision to release her—if she has enough money. Sandra Bland did not have the $500 needed to get out of jail. This is why jails like that in Harris County warehouse mostly poor people who are not convicted of any crime. Sandra was supposed to start a new job, but now she was locked up with no release in sight. She was probably despondent knowing that she would be locked up for weeks awaiting her trial.
Bail is supposed to protect against two dangers: (1) the risk that the person will not return to court; and (2) the risk that the person will commit more crimes if released. Setting a financial bond without taking into account a person’s ability to pay OR the risk that the person will not return to court makes no sense. Most people who are arrested for minor, nonviolent crimes will return to court if released, and the courts have scientifically-validated tools for determining a person’s risk level.
Insurance companies would not charge teenage drivers the same amount for car insurance as they would a responsible adult. They use risk assessment tools to differentiate drivers according to scientifically validated risk factors such as age. Such tools also exist for assessing the risks of flight and recidivism of arrestees. Employees in Harris County’s “Pretrial Services Agency” apply a validated risk assessment instrument and provide this information to the judges. Thus, they already have the information they need to make release decisions in a rational and fair way.
Using a risk assessment instrument in the Sandra Bland case would most likely have indicated that she was safe to be released pending her next court date. She likely would have been released in a number of hours, and she would not have taken her life. See a chart that outlines the problem of financial bail in the U.S.
The Costs to Taxpayers
We can compare Harris County Jail to the jail system in the state of Kentucky which has eliminated the use of financial bonds. In Harris County, 75% of the entire jail population consists of people who are awaiting trial—mostly people like Sandra Bland who are too poor to pay for their release. Only 25% of the inmates have been convicted of crimes. By contrast, in the Kentucky, the percentage of pretrial detainees in the state’s jails is only 30%, whereas 70% consists of people who have been convicted of crimes and are serving their sentences.
For Harris County’s numbers to reach the same levels as Kentucky’s, the number of pretrial detainees would have to drop by a whopping 63%. In other words, if Harris County’s judges relied on the recommendations of the Pretrial Services Agency, based on a risk assessment, they would make better decisions, with the end result being a drop in the pretrial detention population of 63%. By one estimate Harris County could save about $28 million per year. VIDEO: John Oliver on the use of risk assessment instruments as compared to a financial bond system.
Promoting the Use of Validated Risk Assessment Tools to Determine Pretrial Release
A recent national study by the Laura and John Arnold Foundation used a scientifically validated risk assessment tool to determine the risk levels of 153,000 arrestees from Kentucky who had been processed via a financial bond system. The study ascertained the risk levels of the arrestees, categorizing them as low, moderate, or high risk. The findings were astounding. First, the study found that of the high-risk defendants (people who should be detained pretrial due to their risk of flight and/or recidivism), over 50% came up with the money to get out of jail soon after arrest. Often they were charged with serious felonies and had a high bond amount set. Judges often think a high bond amount will keep a person in jail, but it doesn’t, at least not if the person can come up with the money. And, judges and prosecutors have no idea who gets out and who stays in. High-risk people should be detained with no possibility of release pretrial, but they are not under a system that allows people to buy their way out of jail.
The other important finding was that when researchers examined the low-risk and moderate-risk people who paid the money to be released and compared them to the low-risk and moderate-risk people who were too poor to gain their release, they found that the latter category of people were much more likely to commit crimes in the future. This is easy to understand. Many of the people arrested come from the lower strata of society: the poorest people who live hand-to-mouth. Imagine a person who pays weekly rent on an apartment for himself and his family, he has a carpentry job with a work crew, he makes just enough money to feed the family and pay bills. If this person gets arrested, there is no bank account with hundreds of dollars to pay a bondsman. This man will have to sit in jail for weeks or months (at taxpayer expense). You can imagine what happens to his family, his job, his entire life. It should come as no surprise that this person will be more likely to commit future crimes.
Reducing Wrongful Convictions
People who languish in jail because they are too poor to pay for their release are desperate to get out. Studies now show that they are willing to plead guilty to crimes they did not commit if the prosecutor agrees to release them immediately on a sentence of “time served.” In 2014, the Public Defender’s Office in Houston received over 300 cases of guilty pleas in which people pled guilty to drug charges before crime laboratory testing had occurred. Attorneys later learned that the substances were not controlled substances. In some cases, the defendants had been in prison for weeks or months after pleading guilty. In these cases, the police had submitted the suspected drugs to crime laboratories for testing, but the results were not ready when the cases went to court. Defendants are eager to plead guilty before laboratories can realistically be expected to complete testing. For individuals who cannot pay a financial bond, they often prefer immediate release to the prospect of remaining incarcerated pending the completion of laboratory testing. This example teaches the broader lessen of the coercive nature of pretrial detention and how it can lead innocent people charged with many types of offenses to plead guilty rather than continue in jail pending a trial that may take months to occur.
Effects on the Mentally Ill
In the Harris County Jail alone there are approximately 2,000 inmates who suffer from mental illness, and most of them lack the wherewithal to pay hundreds or thousands of dollars to get out of jail. Most of these people pose no danger to the community, and they could be adequately supervised in the community to ensure their return to court. In truth, most are in need of intervention outside the criminal justice system: medication, treatment, and other support. One thing is clear: they don’t belong in jails. Their poverty keeps them in jails where their illness goes untreated and will become worse. As the tragic case of Sandra Bland shows, jails are notoriously bad places to house the mentally ill. Whatever conditions they have upon entry are only exacerbated by confinement in these terrible places. Jails may provide them with some medication, but these are not places equipped to provide treatment or even a healthy atmosphere. Depression, anxiety, and many other types of mental illness can quickly lead to suicidal thoughts and behavior within jails.
Law Enforcement and Judicial Support for Pretrial Justice Reform
Bail reform is strongly supported by the law enforcement community such as the International Association of Chiefs of Police, the National Sheriffs Association, the National Jail Association and the National Prosecuting Attorneys Association. Police officers see first-hand which of the people they arrest bond out and which stay in jail, and they don’t like the outcomes. Reform is also supported by the Conference of Chief Justices, an organization of State Supreme Court Chief Justices.
Progress around the Country
The State of Kentucky eliminated the use of bail bonds years ago and has ever since employed a rational and humane system for determining pretrial release based on a risk assessment instrument. As a result, the state does not have the problems of overcrowded jails, jail suicides, and warehousing of the poor and mentally ill that exist in other states. In 2014, New Jersey and Colorado enacted state legislation to virtually eliminate the use of financial bonds. This year, the New York City has decided to eliminate financial bonds for all nonviolent offenses. Many other jurisdictions are implementing risk assessment instruments and studying the issue of bail reform.
- NYC young man kills himself after time in jail. Man in jail on a minor theft charge, couldn’t pay the bail.
- NYC eliminates use of commercial bonds
- NY Times coverage
Progress in Texas and Harris County
Leaders in Harris County have been selected as finalists for MacArthur Foundation grants aimed at reducing the jail population without affecting public safety. It remains to be seen whether the county will win the award and what changes will result from the study supported by the grant. At the state level, Supreme Court Chief Justice Nathan Hecht has created a committee to study the issue of pretrial detention and bail reform.