I believe that it is much more important to follow your beliefs than it is to follow a party. When one puts their belief and loyalty into an organization, they are apt to become easily influenced and corruptible. It is for this very reason that when the military takes its oath, they take it to the constitution. This ensures that their loyalty lies in a belief system that transcends parties or individuals. This is the problem with politics today. Those on the left will oppose any action that the right takes and vice versa. I love watching the videos by the likes of Mark Dice, where people go out into the streets and ask people about the policies of Republican politicians. Over and over, the people he interviews tell him how awful they are without realizing that they are actually from the Democratic platform. This blind obedience to a party creates hostility based in hyperbole instead of facts.
In stating that, I find myself in the oddest of positions today in supporting Governor Jerry Brown from California in passage of SB-10 – Pretrial release or detention: pretrial services. In passing this bill, the governor has ended the cash bond system in the California legal system. I admit that when I first learned of it, I was skeptical of its worth. After all, the cash bail system has been around since the inception of our legal system. The Eighth Amendment to the Constitution addresses this issue directly: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Yet it is in the very wording of the amendment that the demise to cash bail is found.
So, what is the purpose of the bail system? When someone is arrested, the courts often want some sort of motivation to ensure that the accused will return for their trial date. This motivation comes in the form of a payment that the individual must give to the court to hold until their appearance. Assuming that the defendant shows up to court, their money is returned. The problem that arises is that the majority of individuals who commit crimes cannot afford to pay the high costs that the court imposes. Here is where the bond industry came into play. If Tom is arrested and given a bail amount of $10,000, he would go to a bondsman and pay them 10 percent (or $1000) to cover the full amount of the bail. Unlike the court, however, the bond company keeps this as their payment. If Tom does not show up to court, then the bond company ends up taking a loss on their investment (which is why they hire bounty hunters to track down the fugitives). However, if Tom makes his court appearance and is found innocent, he is still out the $1000.
Worse yet is the fact that the majority of accused cannot even afford the 10 percent requirement for the bond. This is not stating that the system is rigged against the poor or that the justice system is racist. It is simply stating the truth that the majority of those that commit crimes tend to come from a lower economic status. If they cannot pay the bond, then they sit in jail awaiting a trial that could be months or even years away. In 2013, a study was published by the National Institute of Corrections, titled, “The Hidden Costs of Pretrial Detention.” This study looked at “153,407 defendants booked into a jail in Kentucky between July 1, 2009, and June 30, 2010…” The results of their study were very telling. “Detaining low- and moderate-risk defendants, even just for a few days, is strongly correlated with higher rates of new criminal activity both during the pretrial period and years after case disposition; as length of pretrial detention increases up to 30 days, recidivism rates for low- and moderate-risk defendants also increases significantly.
“When held 2-3 days, low-risk defendants are almost 40 percent more likely to commit new crimes before trial than equivalent defendants held no more than 24 hours.” The stats continued, “When held 8-14 days, low-risk defendants are 51 percent more likely to commit another crime within two years after completion of their cases than equivalent defendants held no more than 24 hours.”
This data correlates directly with what is found from those convicted and put into prisons. The Bureau of Justice Statistics released a study in 2005 that found, “Within five years of release, about three-quarters (76.6 percent) of released prisoners were rearrested.” The problem is multifaceted. For one, when you put amateur prisoners together with professionals, they will learn and get better at their craft. Another issue is that softer prisoners become hardened in the ruthless jail environment. The biggest issue that the 2013 study found, however, was the fact that it destabilizes an already unstable environment. Most of those awaiting trial in jail have low-skilled, low-pay jobs. If they cannot show up, they are easily terminated and replaced. Ultimately, a loss of job means loss of home and increases the odds of criminal activity. Yet this is not the same problem for those who are wealthy. They can easily afford to either post bail or bond. In essence the courts have created a cast system: jail for the poor, and release for those of means.
This is where the argument against the first word of the Eighth Amendment comes in—excessive. Our justice system is created on the basis of innocent until proven guilty. In fact, Judge William Blackstone stated in 1769, “the law holds that it is better that 10 guilty persons escape, than that 1 innocent suffer.” The decision to allow someone to walk free while awaiting trial should not be based upon their bank account.
Of course, none of this should be taken as me having a weak stance on crime or criminal behavior. The courts need to look at the totality of the crime and the risk to the public at large when determining whether or not the accused should be allowed to walk free while awaiting trial. In doing so, it is important to realize the secondary and tertiary effects that their decisions can have. The fact is that locking someone away increases the odds that they will remain in the prison cycle. If we are talking about someone accused of rape, child exploitation, or any other type offense, there are clearly reasons to hold them in jail out of concern for the public. But what about those accused of minor offenses and misdemeanors? How is it in the interest of the public good to have these individuals sit in a jail while awaiting trial?
In this case I will applaud the Socialist Republic of California for actually equalizing the field a bit. While I disagree with the majority of the left’s views when it comes to the criminal justice system, I find it impossible to disagree with the blatant inequity that has been allowed to fester. I wish that we could all be less focused on our political leanings and more concerned with the outcome. Our society would be not only better off, but safer if we could find a way to think freely for ourselves. This does not mean that we forsake our ideals or values. Quite the contrary, it is these that we must be willing and, more importantly, able to defend. California has managed, in this instance, to come a little closer to the liberty laid out for us in the constitution.
