Commentary: The bail system in the U.S. — and in Utah — is broken

Excessive and overimposed bail wreaks havoc on the lives of individual Americans every day and is also a major contributor to overcrowding in the jail system.

(Eric Risberg | The Associated Press) In this photo taken Wednesday, Dec. 23, 2015, a number of bail bonds offices are seen across from the Hall of Justice in San Francisco. Two Harvard law school graduates are waging war against the time-honored cash bail bond system, saying it discriminates against poor people who don’t have homes to put up as security for getting out of jail.

It’s no longer breaking news that an alarming number of American families are just one unexpected bill away from the edge of their own personal financial cliff — in fact, new data continue to bear it out. This trend has crossed class and racial boundaries for some time.

But these reports tend to focus on medical emergencies or car repairs as the surprises that threaten the financial solvency of American families. They leave out one critical contributor that local governments can actually remedy quickly: excessive bail.

Today’s bail system is broken. Bail is excessive in amount and in frequency of assessment. The bail system in this country — and here in Utah — is broken. With some effort on the part of legislators, reason can be restored to the bail system, reducing jail overcrowding and the financial ruin one court appearance can bring to an American family.

The right to bail — the right of an accused person to be free before trial — is an ancient one, dating back to the Magna Carta. It’s enshrined in the U.S. and Utah constitutions. As is demonstrated in my new book about the bail crisis (”The Bail Book: A Comprehensive Look at Bail in America’s Criminal Justice System,” Cambridge University Press), even in ancient times almost all offenders had a right to a reasonable bail. As a fundamental right, bail could only be denied for the most serious, dangerous offenders.

But the process for assessing bail has evolved in such a way that this right is all but stripped away from many Americans. Not only are their constitutional rights violated by excessive, unwarranted bail, but it sends them on a path toward more serious crime — the very opposite of the goal of our criminal justice system.

A typical bail hearing consists of a judge making a two-minute decision to set bail for a defendant when no defense lawyer is present. The judge has no evidence of what bail the accused might be able to afford. Two recent Utah studies — a legislative audit and a Judicial Council review — have analyzed the effectiveness of Utah’s pretrial release program. Both came to the same critical conclusion: During pretrial hearings, judges do not have enough information about accused individuals to make well-informed decisions about setting bail, pretrial release or detention.

Still, in that quick encounter is made one of the most consequential decisions in that defendant’s life. The ability to secure bail often makes or breaks the difference between a defendant’s ability to prove her innocence, retain her employment, meet her family obligations or hold on to her housing.

A 2013 study found that defendants detained before trial were three to four times more likely to be sentenced to prison. In fact, multiple studies have found that defendants forced to sit in jail prior to trial receive longer sentences for their offenses. One University of Chicago study found that defendants who can’t make bail are also much more likely to plead guilty and take lower-quality plea bargains so they can get out of jail and get back to their jobs and families. But these are bad bargains since they carry with them a record that will haunt defendants long term.

Excessive and overimposed bail wreaks havoc on the lives of individual Americans every day and is a major contributor to overcrowding in the jail system. Fully 43 percent of Utah’s jail population is awaiting trial, still in the “presumed innocent” phase of the justice system. Utah taxpayers spend approximately $81 per day per inmate. Much of these costs are unnecessary since a large percentage of the inmate population are pretrial detainees.

This is why the state has rolled out a new program that gives courts the ability to use a pretrial risk assessment tool. The tool accounts for different factors about the accused person and calculates flight risk and danger to the community. Judges can use this calculation to make a more informed pretrial decision based on facts that will help ensure bail is set more accurately to each unique case. My hope is that, in the next phase of reform in Utah, all defendants will also be accompanied by a lawyer at their bail hearings.

Before depriving a presumably innocent person of freedom, it is absolutely necessary that there be reasonable proof of substantial risk to justify detaining them until their trial. Bail assessment is one of the most critical pieces in reforming the criminal justice system. Its failure threatens constitutional freedoms and individual lives. As Utahns, we must protect our own constitutional rights by supporting bail reform.

Shima Baradaran Baughman | The University of Utah

Shima Baradaran Baughman is a law professor at the University of Utah and author of “The Bail Book: A Comprehensive Look at Bail in America’s Criminal Justice System” (Cambridge University Press).