Reforming Bail Reform: Thoughts on Finding a Middle Ground

Bail reform in its current form is not a sustainable solution, just as the previous system was bound to collapse under its own weight.

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Earlier this week, we reported on that a New York City man—who had been arrested and released from jail six times in six weeks for a variety of minor offenses—said that the state's new bail reform law is "lit."

The man—identified as 56-year-old Charles Barry—was arrested for reportedly jumping a subway turnstile in Penn Station. Barry was then held in custody for about 36 hours before being released without paying bail as a result of the new guidelines adopted in January that eliminated cash bail for misdemeanors and "non-violent felonies."

According to court records, Barry has been arrested 139 times and has a lengthy criminal record, including six felonies, 87 misdemeanors, and 21 missed court hearings. The new law in New York requires judges to release defendants without bail in nearly countless cases, including some instances of assault, battery, robbery, burglary, and even manslaughter.

Police officers in New York have been critical of the effects of the new bail guidelines, which they say have led to an uptick in crime in the Big Apple.

Even New York City Mayor Bill de Blasio is considering changes to the law.

"The bail reform law needs to be amended," de Blasio recently said. "I believe this strongly."

On the opposite side of the country, the New York mayor may have an unlikely ally in the Chief of the San Jose (CA) Police Department.

Just a day before the New York "turnstile hustler" story, we reported on Chief Eddie Garcia's frustration over the release of a felon without bail who had been arrested for illegally possessing a weapon just hours after being booked.

Garcia said that this is the second time in less than a month that a dangerous criminal has been released into the public despite having allegedly committed serious offenses.

"Of course he's a danger to the public," Garcia said. "My officers are sacrificing a lot. To have an individual with this type of firepower get released back into our community six hours later is shameful."

Proponents of bail reform say that it's unjust to allow millionaires and billionaires to walk free after committing rape and other heinous offenses while "turnstile jumpers" who lack the means to make bail are forced to await prison from behind bars.

Opponents say that allowing criminals to be released from jail only encourages them to commit other offenses with impunity, and have very little—if any—incentive to show up for their day in court.

As I'd written last week in this space, the middle is probably the place that offers the most sustainable and reasonable solutions. This is borderline blasphemy in an age of outrage on the extremes of just about every topic of conversation, but it's true.

Let's unpack this matter—from the left, the right, and the middle—and see if we can figure out a reasonable, rational solution to a very complex issue.

From the Left

First and foremost is asking—and answering—the question, "Does cash bail tilt heavily in favor of the wealthy?"

Absolutely—there's simply no plausible argument against this point. Wealthy offenders have no difficulty posting millions of dollars in bail while individuals with barely two nickels to rub together are forced by the current system in many states to await trial behind bars.

This disparity is simply not consistent with the American value of equal justice for all.

Further, being jailed prior to trial has substantial collateral damages in myriad cases. Whether they are eventually found guilty or innocent, people awaiting trial from jail often lose their jobs. People are assaulted by fellow inmates. People have families disintegrate. There must be some consideration given to these adverse and unintended consequences.

Finally, it's indisputable that the cash bail system has spawned the creation of a multi-million-dollar industry for bail bonds companies. This was not the intended effect of the cash bail system as envisioned by the framers of the United States Constitution who wrote in the Eighth Amendment that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Okay, that's an incredibly brief—and possibly incomplete—summation of that side of the discussion.

Let's now take a look at this issue from the more conservative standpoint.

From the Right

First and foremost, let's address the progressive/liberal argument that most pre-trial jail inmates are accused of "just drug or property crimes."

This argument implies that there are no victims of "just drug or property crimes"—a contention that quickly crumbles when you examine the effects of those crimes in the downstream of society.

Look at San Francisco where taxpayers now must fund a half-million-dollar program for five county employees to pick up from the streets and sidewalks an estimated 10,000 used heroin needles per year.

Then there are the countless millions of tourists from around the globe who visit the City by the Bay and have their belongings stolen from their rental cars by those individuals looking to score their next heroin high.

Further, and most importantly, allowing potentially violent people to walk free from jail puts myriad innocent civilians at unnecessary risk. Just because a person was arrested for a minor crime this time doesn't mean that they don't have a lengthy criminal history involving something far more serious and sinister.

From the Middle

Here's an idea: How about allowing some element of judicial discretion to rule individual cases according to the available evidence?

Can we perhaps have a reasonable person interpret what is the best thing not only for the accused, but for the victim(s), the community at large, and the law enforcement officers who are the most likely to encounter a freed criminal? Can we not have a system that looks more carefully at a criminal proceeding from the outset and not just at trial?

Can we not posit—and answer—questions that may result in an informed decision?

What is the individual's criminal history? What is the alleged crime? What is the status of the victim? What is the accused going to do for work when they get released? What other factors should be considered?

There are without doubt judges in jurisdictions across the land that are politically motivated, leaning either right or left, so maybe this deliberation is not left to one judge. Maybe it's a small committee comprised of a representative from a victims' rights advocacy group, a criminal defense attorney, a member of the police command staff, and some random person pulled from today's jury pool loitering without purpose in the waiting room down at 850 Bryant.

I don't know the answer.

However—what is plainly apparent is the fact that bail reform in its current form is not a sustainable solution.

This is just as the previous system was bound to collapse under its own weight.

Let's find the middle.

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