This piece is a commentary, part of The Appeal’s collection of opinion and analysis.
COVID-19 has made strikingly clear how overcrowded our jails are. A significant factor is the widespread use of money bail. As a former police chief and federal prosecutor who have witnessed some of the inequalities of this system firsthand, it’s clearer than ever that the United States needs to end its reliance on money bail entirely. And many in law enforcement agree.
Just as the novel coronavirus hit, Law Enforcement Leaders to Reduce Crime & Incarceration — a group of over 200 current and former law enforcement leaders from all 50 states — was finalizing a report that recommends ending money bail. Indeed, the federal government eliminated money bail over 25 years ago, and states are long overdue to follow suit.
It may seem counterintuitive to some, but we’ve seen that overreliance on money bail can actually pose a threat to public safety. People with money can pay to get out while those with less lose their freedom before they’ve been tried and convicted. It’s un-American and disproportionately hurts people of color.
Research indicates that nearly half of the individuals who are likely to commit a crime before trial or skip court are released pending trial simply because they could afford bail. At the same time, money bail systems regularly leave behind bars people who don’t pose any public safety threat. Three-fourths of people detained pretrial are accused of property, drug, or other nonviolent offenses, most often ensnaring low-income people and people suffering mental illness or addiction. Moreover, studies show that people who pose a lower risk of committing a new crime while on pretrial release, but are detained pretrial even as little as 2-3 days, are up to 40 percent more likely to commit new crimes than comparable people who are held less than 24 hours.
Until more states take action, we know that there are steps police can take now to prevent people from going to jail in the first place. Especially as we combat COVID-19, officers should approach policing with a public health lens, seeking to minimize harm. They can do this by issuing warnings or a summons whenever possible. And if an arrest is truly necessary, prosecutors and judges should consider COVID-19 related risk when making bail decisions.
Even for those who are eventually released, being in jail can result in long-lasting damage. Unnecessary jail time often causes severe harm to people’s lives, families, and communities. A few days in jail can cause people to lose their jobs, housing, and even custody of their children.
Pretrial incarceration is also incredibly costly. Estimates suggest that it costs $14 billion annually to incarcerate people pretrial — an amount equal to the total that the Department of Justice has invested to advance community policing in the past 25 years.
New Jersey’s recent overhaul of its bail system is instructive. Following the joint recommendations of a committee of judges, prosecutors, public defenders, private counsel, court administrators and staff from the Legislature and Governor’s office, New Jersey implemented major changes to bail in 2017. The state’s judges have moved away from relying on money bail and now have the discretion to make individual pretrial release determinations. Recent analyses have determined that New Jersey has enjoyed a much lower rate of pretrial detention, a significant reduction in arrests, and reduced recidivism following its bail changes and other reforms. As New Jersey’s example shows, where implemented carefully, bail reform can reduce unnecessary pretrial incarceration without impacting public safety.
But as former law enforcement officers, we know that each jurisdiction has unique challenges and different resources. Instead of a one-size-fits-all solution from Washington, the federal government should enact legislation to provide grants and technical assistance to states to design and implement new pretrial systems that eliminate money bail. This would help communities nationwide by reducing the financial and human costs of unnecessary pretrial incarceration. Two such bills have already been introduced in Congress.
The current crisis underscores our urgent need to look hard at our pretrial justice system. Eliminating money bail is a necessary first step. Instead of wasting scarce resources on jailing those who do not pose a threat to public safety before trial, we should be putting our money and law enforcement resources towards fighting violent crime and serving our communities. And as more states start to fix their bail systems, law enforcement can concentrate on what really matters: keeping our communities safe.
Ronal Serpas is the former Police Superintendent of New Orleans, and Chief of Police in Nashville, Tennessee. Taryn Merkl is a former Assistant U.S. Attorney in the Eastern District of New York, who served as Deputy Chief of the Criminal Division and as Chief of the Organized Crime & Gangs and Civil Rights Sections. Serpas and Merkl now serve as Executive Director and Senior Counsel, respectively, of Law Enforcement Leaders to Reduce Crime & Incarceration.