When I was a boy growing up
in the summer of 1968, my dad, who was asked to deliver a speech at the Republican
National Convention that year told me, “You should always start off with a
joke, and then hit them with your most important topic.” Last night, during the
2016 State of the Union Address, President Obama did just that. After the
obligatory joke, the first substantive topic out of his mouth for the future was
“criminal justice reform.”
Some journalists have written
today that by merely mentioning it but not going into detail, the President was
giving the topic the short shrift. But that’s not true. Criminal justice reform
didn’t need an explanation. It didn’t need to be sold to Congress, and it
certainly didn’t need to be justified to the American people. It’s a topic that
is infinitely important in defining who we are as Americans and how we are seen
by the rest of the world. It’s a topic that virtually everyone is behind, and
that will most definitely happen. And it’s a topic that necessarily includes
bail reform.
About a month ago, the White
House and the Department of Justice co-hosted a meeting on fines, fees, and
bail, which was designed to “build on the Administration’s commitment to
criminal justice reform” by discussing and sharing ideas about how to implement
“common sense reforms so that financial obligations imposed by the government
do not lead to unnecessary involvement in the criminal justice system or
exacerbate poverty.” It was a pointed meeting about money in the criminal justice
system, and about how that money turns criminal justice on its head.
Those of us bail types who
were there provided an ample list of common sense things the federal government
could do to help bring bail reform to both the federal and state systems. But I
don’t think they needed a list. From the first speech by Attorney General Loretta
Lynch, to one of the last by White House Counsel Neil Eggleston, it was clear
that the White House and the Department of Justice had a firm grasp on how bail
had been perverted in America since the mid-1800s into a detention-causing
process through the use of secured money conditions. It was clear to them, as
it is to virtually anyone else in America who does not profit from that system,
that the current administration of bail is wrong and must be fixed.
In 1776, Thomas Paine
published “Common Sense,” a pamphlet that inspired the American Colonies to
declare independence from the tyranny of British rule. In the very first
sentence of its introduction, Paine wrote: “A long habit of not thinking a
thing wrong gives it a superficial
appearance of being right, and raises
at first a formidable outcry in defense of custom. But the tumult soon subsides.
Time makes more converts than reason.” To
Paine, American independence not only made sense, it was also inevitable.
Bail reform is no different. For
too long we have allowed our system of pretrial release and detention to be crafted
to suit corporate insurance interests with no regard to whether using money
even makes sense. Like Paine’s observation of British rule, we have simply
spent too long not thinking money
bail wrong – thereby giving it the unfortunate
home court advantage of custom and habit. Moreover, by merely announcing a
desire to base release and detention decisions on a common sense system of
assessing a defendant’s actual pretrial risk versus his or her charge (which
may or may not indicate risk), states are inviting the inevitable reform
involved in crafting entirely new statutes and constitutional bail provisions that
are currently based on charge.
