Dane County jail cell, generic file photo (copy)

Both Democrats and Republicans have sought to reform the cash bail system, which keeps may inmates jailed because they don't have money. 

When the U.S. Civil Rights Commission released its report, “The Civil Rights Implications of Cash Bail,” earlier this year, it cut through the chaff regarding the number of people who are incarcerated not because they were convicted of crimes, but because they could not afford bail.

“Approximately 631,000 individuals are held in jails every day and almost half a million or 74 percent of these individuals are unconvicted and awaiting trial,” noted this commission. “This number is particularly striking considering that our criminal justice system is founded on a presumption of innocence, where ‘liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.’ Historically, the imposition of bail was intended to assure an individual’s appearance in court, while minimizing the intrusion of liberty, but in practice, it has led to many defendants being detained prior to their trial due to an inability to post bond.”

The commission was focusing on concerns about a cash bail system that has in recent years drawn criticism from both Democrats and Republicans. Even the very conservative Koch brothers have supported sensible bail reform initiatives around the country.

That’s notable, as the National Republican Senatorial Committee is now up with an ad suggesting that Democratic U.S. Senate candidate Mandela Barnes is “dangerous” because he has backed reforms of the cash bail system. But Barnes’s thinking is no more dangerous than that of Ohio Supreme Court Chief Justice Maureen O’Connor, a Republican who said: “Bail is a concept to allow for release from detention while awaiting resolution of your case, it is not a means to keep one in jail. Somehow the concept has gotten backward.” Or Kentucky Senator Rand Paul, who co-sponsored bipartisan legislation in 2017 to reform the system, arguing, “Americans should be able to expect fair and equal treatment under the law regardless of how much money is in their pockets or how many connections they have.”

The reason why cash bail reform has drawn bipartisan support is well illustrated by the U.S. Civil Rights Commission report, which notes that, “The pretrial population grew substantially between 1970 and 2015 and accounted for an increasing proportion of the total jail population. Research suggests that the jail population was five times higher in 2013 than it was in 1970 … Data show that ‘since 2000, 95 percent of the growth in the need for jail resources — the most expensive asset of the criminal justice system — is from the increase in un-convicted detainees.’”

The commission’s most compelling data had to do with injustices associated with a system that allows the wealthy and well-connected to avoid incarceration, while those without cash and connections sit in jail.

“Of those held prior to trial, there were stark disparities with regards to race (i.e., Black and Latinx individuals have higher rates of pretrial detention and have financial conditions of release imposed much more often than other demographic groups) and gender (i.e., males are less likely to be granted non-financial release and consistently have higher bails set than women); additionally, disparities exists between individuals of differing socioeconomic status, and data show that more than 60 percent of inmates are detained prior to trial due to an inability to afford posting bail,” explained the commission. “Moreover, pretrial detention presents a number of negative consequences for the detainee population, including an increased likelihood of being convicted, lack of access to housing, detrimental effects on employment status, and increased recidivism.”

In an intense election season, debates about criminal justice reform often get heated. But it’s important to remember that supporters of bail reform initiatives have been motivated by a desire to promote both safety and fairness. For instance, when Barnes and eight other legislators proposed cash bail reform legislation in 2016, it proposed eliminating monetary bail as a condition of release. But it also included specific language empowering judges to jail defendants before trial in cases where they find that “by clear and convincing evidence, that there is a substantial risk that the defendant will not appear for trial or will cause serious bodily harm to a member of the community or intimidate a witness if he or she is released.”

The legislators were seeking to strike a balance, as have Democratic and Republican legislators around the country. Of course, this is controversial  — especially when there are circumstances where someone who is out on bail commits a crime, as happened last year when a Milwaukee man drove his vehicle into a Christmas Parade in Waukesha, leaving six people dead and dozens injured.

Cash bail reform, when it is implemented thoughtfully, recognizes two responsibilities: It ensures that people are not incarcerated simply because they cannot meet bail demands, and it ensures that systems are in place to keep people who pose a serious threat to others off the streets.

The reforms that were proposed in Wisconsin by Mandela Barnes and his fellow legislators recognized both those responsibilities, as have reforms proposed by Democrats and Republicans across the country.

John Nichols is associate editor of The Capital Times. jnichols@captimes.com and @NicholsUprising. 

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