The Fourth of July is an occasion for the reading of the Declaration of Independence. But a better project might be the reading of the Constitution, a document that many Americans revere without fully understanding.
Among this group are many police officers, even though they take an oath to uphold it and are greatly affected by it in the course of their duties. One provision that sometimes gets short shrift is the Eighth Amendment, which says, “Excessive bail shall not be required.”
That provision rests on the longstanding right of criminal defendants to be granted bail except when no amount would ensure their appearance in court — notably in capital cases. But for others, the right to be released before trial is implicit in the amendment. Denying bail, after all, has exactly the same effect as imposing excessive bail.
Some states, recognizing this fundamental liberty, have enacted laws ending the use of cash bail. The reason is that requiring a money payment leaves huge numbers of defendants languishing in jail not because they have been proven guilty or are deemed dangerous but because they are poor. The vast majority of them will show up in court without it, and judges can require electronic monitoring to make sure they do.
But bail reform has coincided with a spike in violent crime across the country, and some cops have said this is no coincidence.
New York Police Commissioner Dermot Shea decried his state’s changes as a “challenge to public safety.” When Illinois enacted a law this year abolishing cash bail, the head of the Chicago police union said it had “just handed the keys to the criminals.”
The evidence for the charge is skimpy. Violent crime surged last year even in places that didn’t reform bail laws, which suggests something else — such as the pandemic or the economic shutdown or both — was the real cause. And overall crime in the United States fell in the first half of 2020, according to the FBI — which is not what you would expect if hordes of unrepentant criminals were streaming out of the jails.
The opponents of bail reform miss some major points. Bail isn’t supposed to guarantee that no one accused of a crime will commit crimes while awaiting trial. It’s inherent in bail that some defendants will do exactly that. The only way to prevent it is to lock them all up before the government has proven they did anything wrong.
“This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction,” the Supreme Court said in 1951. “Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.”
Cook County State’s Attorney Kim Foxx understands this even if her detractors don’t. In a videoconference Wednesday sponsored by the Illinois Justice Project, she noted that some people think defendants should be locked up even before being convicted.
“They missed the step in the middle, where we haven’t actually gotten to a trial yet,” she said pointedly. But “the presumption of innocence maintains with the accused until there’s a finding of guilt.”
The logic of those who oppose eliminating cash bail is that dangerous suspects shouldn’t go free. But the only sure way to determine which ones are dangerous is to put them on trial.
Besides, requiring monetary bonds doesn’t keep the more dangerous defendants behind bars. It keeps the poorer ones behind bars.
Cash bail is a form of punishment that may actually generate more crime rather than less. Defendants who can’t raise the money may lose jobs, homes and custody of their children. Dooming these people to poverty and dislocation is not a formula for putting them on the straight and narrow.
In Illinois, as in many other states, judges may deny bond to defendants whom they find would pose a risk to public safety if set free. Getting rid of money bail doesn’t prevent judges from simply denying bail to this select group. The right to bail is not unlimited.
But selling freedom only to those who can afford it is not a formula for fairness or safety. Our system of criminal law and justice rests on the presumption of innocence. The critics of bail reform prefer a presumption of guilt.
