Americans are hungry for bipartisan pretrial justice reform

Jessica Preston was jailed when she was eight months pregnant after driving on a suspended license. Though she posed no public safety threat, the suburban Detroit mother was required to post a $10,000 bond. Like most Americans, she didn’t have that kind of money, so she was put behind bars.

A few days later, Preston began having contractions. She asked to go to the hospital, but her request was denied. With no doctor present, she gave birth on the floor of Michigan’s Macomb County Jail.

{mosads}As the nation rightly focuses on family separations and incarceration at the U.S.-Mexico border, most Americans aren’t aware of the over-incarceration plaguing countless Americans like Preston.

Consistent with the 8th Amendment warning that bail shall not be “excessive,” the Supreme Court has ruled that “in our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” Yet instead of following this wise counsel, we have a two-tiered justice system that treats those with fiscal resources better than the poor, regardless of public safety concerns. As Preston’s story shows, this is especially the case with money bail practices that routinely violate our core principles.

A newly released nationwide poll from the Pretrial Justice Institute and the Charles Koch Institute shows most Americans believe the pretrial system is unfair and want reform. More than three-quarters of respondents said the bail system favors the wealthy over poor or working-class people. A slightly smaller majority, including half of white respondents, said the system favors people who are white.

Today, more than six in 10 people in U.S. jails—about a half million people on any day—have not been convicted of a crime. Ninety percent of these individuals, who mostly face low-level charges like Preston’s, are jailed simply because they cannot afford to post cash bond. (If they had the money, most would be released.)

America’s criminal justice system is a maze—once you get in, it’s hard to get out. Even a short time behind bars can cost arrested people their jobs, homes, even custody of their children. It also can lead people to plead guilty to things they did not do just to get out of prison.

The money bail system is not a proxy for public safety. In fact, the system does not advance public safety at all. Research shows even three days behind bars before trial makes a person nearly 40 percent more likely to be arrested again compared to a statistically similar person released within 24 hours of arrest.

The type of injustice Preston faced is not confined to urban areas like Detroit. The Texas Public Policy Foundation has found rural pretrial incarceration has grown more than 400 percent since 1970. This development, felt strongly in the vast center of the nation, helps explain the widespread consensus in favor of reform across regional and demographic groups. Only 6 percent of respondents felt the system worked so well that there was no need for change. 

Respondents told us they would like to see less emphasis on pretrial detention, except when needed to protect public safety. Seventy percent said public safety should be the primary factor in deciding who should be detained before trial. Although more than eight in 10 respondents favored allowing judges to detain people charged with a serious violent crime without bail, just 36 percent felt courts should be able to hold whomever they wanted, regardless of the severity of the charges. 

Americans also want to see more matters settled outside court. For example, 76 percent of respondents want law enforcement to reduce the number of arrests for low-level, nonviolent offenses. Most think issuing a citation is an appropriate alternative. There also was broad enthusiasm for providing support, such as telephone reminders and transportation assistance, to people who might need help getting to court.

The more respondents learned about the system, the stronger support for reform became. At the beginning of the survey, nearly half of those polled (51 percent) had not heard of or had no opinion about “pretrial justice.” After the poll introduced alternatives, 28 percent of respondents who had been undecided or opposed wanted to get rid of money bail altogether. 

Our poll confirms the growing, bipartisan consensus for pretrial justice reform. While people on the left traditionally support reform, conservative energy is also strong and growing, with Republican Sen. Rand Paul of Kentucky sponsoring legislation with Democratic Sen. Kamala Harris of California to help states improve their bail systems.

The Constitution is clear that no one should be put behind bars before trial when he or she is not a threat to public safety. Recently, several federal court cases have challenged the very constitutionality of money bail. Just this week, the 3rd U.S. Circuit Court of Appeals affirmed this principle, ruling that there is no constitutional right to cash bail.

Jessica Preston’s experience does not have to keep happening. We must reform the nation’s bail policies. The time for change is now.

Cherise Fanno Burdeen is the chief executive officer of the Pretrial Justice Institute. Mark Holden is General Counsel for Koch Industries and Chairman of Freedom Partners Chamber of Commerce.