Sunday Commentary: It Is Easy to Attack Bail Reform, but Long Term Pretrial Custody Leads to More Recidivism

By David M. Greenwald
Executive Editor

One of the people arrested for retail theft in San Francisco was released on zero bail, but electronic monitoring.  She ignored the order and was re-arrested for a new crime.

“Ms. Graves violated the court ordered terms of her release by committing a new theft, and by failing to sign up for electronic monitoring,” District Attorney Chesa Boudin’s office said in an email to media.

According to the DA, they had previously “opposed her release to OR and had requested that she instead be released directly to the Sheriff’s Department to be fitted with electronic monitoring device prior to her release,” but the “judge instead decided to release her to another county.”

In my view, it makes sense not to hold theft suspects in custody pretrial—if they demonstrate that they can’t adhere to conditions of release and stay out of trouble, that of course becomes a different matter.

Bail policies have been at the heart of the debate over retail crime reporting with Los Angeles Police Chief Michael Moore being outspoken in opposition to continuing zero bail policies, designed to reduce jail populations during COVID.

“Two years ago, a person arrested would be in custody and set to be arraigned in 72 hours,” said Moore. “Today, that process is, with the zero-bail, that person is in and out back in the community and their next court appearance is an arraignment that’s four or five months out.”

Mayor Eric Garcetti also put blame on zero bail and said the criminal justice system and judges need to scale back the zero-bail policy.

“There are people who need to be behind bars,” he said. “We have opened up a lot of the city because we’re in a better place with COVID. We should be able to also open up our jails and we should be able to have judges that put people behind those bars as well.”

“The vast majority of crime is committed by relatively few people,” Moore said. “And when the few people are constantly gaming the system to understand its weaknesses, the system needs to protect all communities from those individuals.”

I do agree with the chief and mayor that repeat offenders, those who commit new crimes while out on bail, should remain in custody, that would be a reasonable modification to the zero bail system.

But our approach to pretrial custody and release should be driven more by data—and while it is easy to observe the number of people who re-offend when released on bail, evaluating the effectiveness of bail versus a system more likely to release non-dangerous offenders pre-trial is more tricky.

The bail system was put in place to allow people out of custody pre-trial by posting money as a condition of release.  The purpose of bail was to make sure people came back to court for their proceedings and in extreme cases, ensured public safety.

But as Tony Messenger argues in his recent book, “Profit and Punishment,” there has been “a misapplication of the constitutional purposes of bail to create a dual system of justice, one for people with money.  One for those without.”

In Missouri, where he centered his book, he quoted one researcher who found, “If you were held on pretrial bond in jail, the likelihood that you’d get a sentence of incarceration after a plea or trial was three times higher than if you were able to post bail.”

Messenger argued, “That makes the application of bail punitive before a defendant has been found guilty of a crime, and it leads to devastating consequences for the people stuck behind bars.  They lose jobs, cars, homes and their children and that’s just the beginning.”

Perhaps the impact on the people in custody is not that concerning to some people.

There is another part to this – holding people in custody pretrial actually creates more crime.  That was what a 2013 study funded by the Laura and John Arnold Foundation found as it examined recidivism rates in Kentucky by those who were held in custody pretrial.

Using data from state courts, the study found, “Using statewide data from Kentucky, this study uncovered strong correlations between the length of time low- and moderate-risk defendants were detained before trial, and the likelihood that they would reoffend in both the short- and long-term. Even for relatively short periods behind bars, low-and moderate-risk defendants who were detained for more days were more likely to commit additional crimes in the pretrial period – and were also more likely to do so during the two years after their cases ended.”

“Even for relatively short periods of detention, according to the study, the longer a low-risk defendant was detained before trial, the more likely he was to commit a new crime within two years of case disposition,” the study found. “the longer a low-risk defendant was detained before trial, the more likely he was to commit a new crime within two years of case disposition.”

The problem is even short periods of detention can result in huge costs to the defendant, including and in particular the loss of employment.

The problem here is that the police chief is reacting in real time to things that he is seeing.  He acknowledged that the problem is a relatively small number of people.

What he doesn’t see nearly as well is the long-term impact from pretrial detention which actually leads to more crime, not less crime.

The key here I think is to find a reasonable middle ground—not to throw out zero bail or fight bail reform, but rather create mechanisms to hold those attempting to exploit the system accountable while still allowing those people who made their mistake but are following the rules to be out of custody.

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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