Conservatives from across the country are calling for pretrial reform after a man released on cash bail killed six and injured scores more when he drove an SUV through a Christmas parade in Waukesha, Wis. From local columnists to former prosecutors, the tragic November attack has become a key piece of evidence in the right-of-center argument against a cash-bail status quo. The core of the argument is that wealth-based detention undermines both community safety and individual liberty.
“The reality [...] is that the cash bail system — the process by which defendants are released from jail in exchange for paying money — is broken,” wrote Lisel Petis, a resident senior fellow at the R Street Institute, a conservative think tank. “Calling the system ‘broken’ does not mean violent offenders should be released out on the street to walk free, but rather the opposite.”
The problem is that cash bail keeps Americans behind bars not on the basis of their danger to communities, but on their ability to pay, Petis, a former Colorado prosecutor, said in her piece.
“[T]his system often releases violent offenders who have the money or connections while keeping confined those with low-level offenses, no signs of risk, but also no means to pay.”
Wealth-based detention can keep hard working mothers and fathers away from their jobs, families and communities, but all too often portrayals of the criminal justice system obfuscate these common harms. Yet to prosecutors like Petis, the failure of cash bail is readily apparent. And it should be no surprise that Petis was echoed by another prosecutor, Andrew McCarthy.
The former assistant U.S. attorney wrote an opinion piece for the Fox News website about how wealth-based detention is ineffective and outdated, and that states need to look to an alternative.
“[T]here is no reason for the heavy reliance of many states on antiquated cash-bail standards,” wrote McCarthy, a contributing editor at the National Review. “There is a better solution that would reduce the relevance of an accused person’s financial means. Rather than financial means, a bail system should focus on the offense conduct alleged and personal history.”
Experienced prosecutors weren’t the only ones calling for bail reform. In the Detroit News, conservative editorial page editor Nolan Finley wrote about how his home state of Michigan had been working after Waukesha to change a cash bail system that “unleashes dangerous criminals on the public while keeping locked up those who present little risk to their communities.” As Finely points out, Wisconsin had not implemented reforms “like the ones proposed for Michigan” that would have replaced ad hoc decisions with better systemic processes.
“The biggest obstacle are prosecutors and judges who screw up, as they did in Waukesha,” Finley wrote.
Conservatives also pointed out how cash bail undermines fiscal responsibility. Keeping people behind bars simply because they can’t afford to pay burdens taxpayers with unnecessary and expensive jail stays even cases that pose no threat to public safety.
“Most low-level offenders are unlikely to flee. Keeping them locked up does little to make neighborhoods safer,” wrote David H. Safavian, general counsel for the American Conservative Union, in the Washington Examiner. “On the other hand, the cost of jailing them is significant, not just for the taxpayers who pay for expensive jail cells, but for families and employers who lose loved ones and employees.”
Safavian, who served in the George W. Bush administration, further noted how cash bail undermines constitutional rights like the right to a speedy trial, prohibitions on excess bail, and the guarantee of due process.
Petis underscored these constitutional concerns by citing Chief Justice William Rehnquist’s opinion in U.S. v. Salerno.
“As the United States Supreme Court has said, “[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”