CHAPMAN: Don’t Blame Bail Reform For Violent Crime
July 4 is the occasion for the reading of the Declaration of Independence. But a better project might be reading the Constitution, a document many Americans revere without fully understanding.
Among this group are many police officers, even if they take an oath to uphold it and are greatly affected by it in the performance of their duties. One provision that is sometimes overlooked is the Eighth Amendment, which says, “An excessive bond shall not be required.”
This provision is based on the long-standing right of criminal accused to be released on bail, except where there is no money guaranteeing their appearance in court, especially in capital cases. But for others, the right to be released before trial is implicit in the amendment. Denying bail, after all, has exactly the same effect as imposing excessive bail.
Some states, recognizing this fundamental freedom, have enacted laws ending the use of the cash bond. The reason is that demanding payment in cash leaves a large number of defendants languishing in prison not because they have been proven guilty or are deemed dangerous, but because they are poor. The vast majority of them will show up to court without it, and judges may require electronic monitoring to make sure they do.
But bail reform coincided with an increase in violent crime across the country, and some police officers said it was no coincidence. New York Police Commissioner Dermot Shea called the changes in his state “a challenge to public safety.” When Illinois passed legislation this year to abolish cash bonding, the Chicago Police Union chief said he had just “handed the keys to the criminals.”
The prosecution’s evidence is scant. Violent crime rose last year even in places that didn’t reform bail laws, suggesting something else – like the pandemic or the economic shutdown or both – was on it. the real cause. And overall crime in the United States fell in the first half of 2020, according to the FBI – which is not what you would expect if hordes of unrepentant criminals emerged from prisons.
Opponents of bail reform miss a few important points. The bond is not meant to guarantee that no one accused of a crime will commit crimes while awaiting trial. It is inherent in bail that some accused will do just that. The only way to prevent it is to lock them all up before the government has proven that they have done something wrong.
âThis traditional right to pre-sentencing liberty allows for the unhindered preparation of a defense and serves to prevent the imposition of a pre-sentencing sentence,â the Supreme Court said in 1951. âUnless this right to pre-trial bail is preserved, the presumption of innocence, acquired only after centuries of struggle, would lose its meaning.
Cook County State Attorney Kim Foxx understands this even though his critics don’t. During a videoconference last Wednesday sponsored by the Illinois Justice Project, she noted that some people believe the defendants should be locked up before they are even sentenced.
“They missed the middle stage, where we haven’t had a trial yet,” she said emphatically. But “the presumption of innocence remains with the accused until there is a verdict of guilty.”
The logic of those who oppose the elimination of the cash bond is that dangerous suspects should not be released. But the only sure way to determine which ones are dangerous is to judge them. Moreover, demanding monetary obligations does not keep the most dangerous defendants behind bars. It keeps the poorest behind bars.
Cash bail is a form of punishment that can actually lead to more crime than less. Defendants who cannot raise the money may lose their jobs, housing and custody of their children. Condemning these people to poverty and dislocation is not a formula to put them on the right path.
In Illinois, as in many other states, judges can deny bail to defendants they believe would pose a risk to public safety if released. Getting rid of the financial bond does not prevent judges from simply denying the bond to this small group. The right to bail is not unlimited.
But selling freedom only to those who can afford it is not a formula for fairness or security. Our system of criminal law and justice is based on the presumption of innocence. Critics of bail reform prefer a presumption of guilt.