Editorial: Fixing a broken bail system

Published: 3/21/2018 12:05:02 AM

New Hampshire should join the growing number of states that are reforming their unfair and counterproductive pretrial bail process. A quick look at a few numbers shows why:

Nationally, more than six out of every 10 jailed inmates are awaiting trial.

It can cost as much as $150 per day to house an inmate in pretrial detention in New Hampshire. Taxpayers pay the bill.

Typical cash bail for someone charged with simple assault is $500.

According to a 2017 survey by Bankrate, despite low unemployment and a strong economy 57 percent of Americans don’t have enough cash to cover an unexpected $500 expense.

New Hampshire-specific statistics aren’t yet available but in Philadelphia, one-third of all defendants were in jail because they couldn’t meet cash bail. The bail system penalizes people for being poor.

Studies have found that after three days jailed defendants begin losing jobs, housing and even the custody of their children. When breadwinners are behind bars, families go hungry.

Pretrial detention has been linked to an increased likelihood of committing a future crime. One estimate put the increase at 9 percent.

In the District of Columbia, which rarely requires cash bail for minor offenses, 89 percent of those released on personal recognizance showed up for their court appearance, a comparable rate to that of defendants released on cash bail.

The state’s judicial system, along with lawmakers and the Pretrial Justice Institute, a national bail reform advocacy organization, recently began work on an assessment of the state’s pretrial detention policies with an eye to recommending needed reforms. We believe they’ll find some.

Judges should err on the side of public safety when deciding to deny bail to defendants who could pose a threat to public safety and require bail of those deemed to be at risk of flight. But the majority of those in jail are neither. They’re cash poor.

A judicial system that arrests two people for an identical offense and let’s the one with money go free while keeping the other behind bars cries out for reform. So does a system that falls more heavily on people of color – because they are more likely to be poor.

The national bail reform effort New Hampshire joined is called 3DaysCount, because after that people’s lives start unraveling. A guilty plea may get a defendant out early but a potentially avoidable conviction for even a minor crime can make federally subsidized housing off limits and make it hard to find employment. A bipartisan bill before the Legislature seeks to address both problems.

Sen. Dan Feltes, its lead sponsor, wants judges to consider a defendant’s financial situation when deciding whether to require cash bail. That it certainly should do. He also wants to speed up the annulment process, which allows convicts who can demonstrate that they’ve turned their lives around to have their criminal record scrubbed. Prosecutors, who now have 30 days to respond to such requests, would have just 10 to do so. That change would put too great a burden on a system that is often short of resources.

It would be better, we believe, to hold off on reform legislation and wait for the assessment of the committee studying bail practices and its recommendations.

In the meantime, judges and prosecutors should take a close look at their own role in what is now seen as a national problem.


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