Current bail system is not justice for all

Sheriff's deputies make rounds through the maximum security unit at the Thurston County jail in Tumwater.
Sheriff's deputies make rounds through the maximum security unit at the Thurston County jail in Tumwater. toverman@theolympian.com

Tonight, 286 people will be sleeping in our county jail, and 23 more will be in contracted jail beds in Lewis or Yakima Counties. About half of them have not been convicted of a crime; they are in jail awaiting trial.

It’s doubtful that having each and every one of those people in jail makes our community safer. Many of them are in jail not because they are a threat to our safety, but because they could not afford to pay bail.

When a judge sets bail, in most cases we assume that the community would remain safe if the accused paid the bail, and was out of jail while waiting for trial.

In certain cases, a judge might set an extremely high bail amount for a murder, rape or other really awful crime, with the expectation that this would keep someone locked up. But criminals with access to lots of cash contradict that idea. People like Bill Cosby, Harvey Weinstein, and violent high-roller gang members sleep at home in their own comfy beds while they await trial no matter how high their bail or how dangerous they are.

For people who are broke or very low income, bail is a de-facto jail sentence – a sentence imposed in advance of a trial or conviction.

The obvious unfairness of this situation has led to a national conversation about bail reform. California’s legislature passed a measure that seeks to abolish bail altogether. The legislation calls on judges to use some combination of data-driven risk assessment tools and their own discretion to make an either/or choice between pre-trial freedom and pre-trial jail time for most non-violent offenses. That idea has three problems. The first is that current risk assessment tools are not very reliable and may perpetuate racial and economic profiling. The second is that giving judges that much discretion is also an open door for biased decision-making. Third, the bail bondsmen of California, who would all be put out of business by the new law, have mounted a successful referendum campaign to put the matter on the ballot.

There are other alternatives to bail. Counties (and other jurisdictions) can establish pre-trial conditions that reduce the likelihood of additional offenses, and help ensure that defendants show up for their court dates. These include electronic home monitoring, interlock devices that prevent drunk driving, weekly check-ins with county personnel, or participation in treatment programs.

Courts can also help by offering bus passes, texting reminders to defendants’ phones, and providing navigational help with mental health, addiction treatment, and other services.

Thurston County courts do currently offer several alternatives to incarceration. There are special courts that offer alternatives to jail time for low level offenders who are veterans, for people with mental illnesses or addictions who agree to participate in treatment. And there is a growing menu of pre-trial services, which newly includes those text message court date reminders.

But so far, it doesn’t appear that our local county justice system has directly confronted the challenge of bail reform, or made reducing the pre-trial jail population a priority.

Being in jail is a devastating experience. It can result in the loss of a job, the loss of housing, and most important, the loss of family relationships when people are incarcerated far from home in Yakima or Lewis Counties.

Also, keeping people in jail is expensive. Last year, there was talk of building an additional 80-bed jail facility, but when the price came in at well over $13 million, it was put on hold. That was a good decision. We hope it will be followed by deeper consideration of how to hold people accountable and protect public safety with measures that don’t involve locking so many people up.

There has been progress in reforming our county criminal justice system, as the growth of pre-trial services and specialized courts demonstrate. But the pace of change looks awfully slow. Granted, it’s an extremely complex challenge that involves the sheriff’s office and jail, the prosecutor’s office, the county’s public defender, the judiciary, and the county commission. Each of these institutions sees the world from its own particular perspective, and their joint Law and Justice Council has been meeting only four times a year. That schedule certainly doesn’t telegraph any sense of urgency about making our criminal justice system fairer, reducing the jail population, or making better use of our tax dollars.

This year, newly elected County Commissioner Tye Menser will be representing the Commission on that Council. He’s an attorney with experience in indigent defense, and a commitment to accelerating criminal justice reform. We wish him and all the members of the Law and Justice Council godspeed on this journey. As William Gladstone said, justice delayed is justice denied, and for far too many, justice has been denied far too long.