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.