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The conservative approach to criminal justice:
fighting crime, supporting victims, and protecting taxpayers.

Money should not come before safety

| July 9, 2018

This blog by Julie Warren was originally published by the Beacon Center July 9th, 2018.

The principle of innocent until proven guilty is a bedrock of America’s criminal justice system. However, the favor that courts and prosecutors continue to lavish upon pretrial detention and our bail system has eroded that same bedrock of our justice system, and imposed significant costs to local taxpayers.

What does pretrial detention entail, and what does it have to do with bail? An accused is often assessed bail to secure their release pending trial. Regardless of the severity of the offense or risk to the community, an accused is released if they can afford to pay, and if they cannot then they are subject to pretrial detention.

Practically speaking, money bail serves no public safety interest. Bail has become a mechanism by which a person of means can purchase their freedom. A wealthy person charged with a violent crime can be released because they could afford bail. However, a poor person will oftentimes remain in jail awaiting the disposition of misdemeanor possession charge. This means that they are removed from their family and may lose their job.

Regardless of the human toll and overall futility, the practice of using bail to determine pretrial release continues to drive the growth in local jail populations throughout Tennessee. The cost to local taxpayers to house pretrial detainees is approximately $35 per day, and that does not factor the additional cost that local taxpayers absorb to build more jails. In 2017, the average number of pretrial detainees housed in local jails totaled 14,664, presenting a total cost of nearly $60 million a year. Currently, over half (51.4 percent) of Tennessee’s total jail population is comprised of pretrial detainees, up from 32 percent in 1997. What is more, those detained while awaiting trial for a misdemeanor offense has skyrocketed, up to 17 percent from 9.7 percent in 1997. In Cocke County—where last year the jail facilities were at 140 percent capacity —pretrial detainees made up 79.8 percent of the county’s jail population, with 41.6% of them detained for a misdemeanor offense.

There are better alternatives to money bail, and tools that can supplement judicial discretion that would promote safety, justice, and save taxpayer dollars. My colleagues at the Texas Public Policy Foundation recently published a report that highlighted the steady increase in jail populations throughout the country, particularly the pretrial detention population. The report made the case for the presumption in favor of release, even supervised release, with detention reserved only for those individuals who cannot be safely supervised within the community. A pretrial risk and needs assessment performed at intake enables the court to determine the accused’s risk of flight or danger to the public. Moreover, for those requiring a supervised release, electronic monitoring has proven an effective, less costly alternative to ensure the appearance of the accused. In fact, a studysponsored by the U.S. Department of Justice found “the cost of imprisonment is about six times higher than the cost of electronic monitoring,” but more importantly, it also “reduce[d] offenders’ risk of failure by 31 percent.”

The freedom of someone accused of a crime should never be dependent on their wealth, but on whether their release would be a safety risk to the community. Moreover, Tennessee counties can no longer afford to run debtors prisons. Thus, Tennessee must rethink its archaic use of bail to determine pretrial release.

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JULIE WARREN is a graduate of Marshall University and of Regent University School of Law. She also attended Georgetown Law Center as a visiting student. While in law school, she clerked on the Senate Judiciary Committee. Julie served four years at the U.S. Department of Justice in Washington, D.C. After a few years in private practice as a civil defense litigator, Julie returned to public service and began her work in the Office of the West Virginia Attorney General where she primarily served as an appellate advocate for the State of West Virginia and as legislative counsel to the Attorney General.

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