Op-Eds

Let defendants work. It keeps people safe and saves money

July 26, 2018

issues: Bail Reform, Criminal Justice and Civil Liberties, Expanding Diversion, Jails, Pretrial

originally published in Los Angeles Times

At any given moment, nearly half a million Americans are awaiting trial in jail. Almost two-thirds of these individuals will remain incarcerated until their trial, including about half of those with no prior history of arrest.

These people are presumed innocent. Unfortunately, the ability to pay bail is more dependent on someone’s income than on the severity of his or her alleged crime. Many people who are neither a threat to the community nor a flight risk sit idly behind bars — losing wages and often their jobs — because they cannot afford bail.

The bail system needs reform, but until that happens, pretrial work release programs would respect the due process rights of the accused, keep communities safe and save taxpayer money.

Shannan Wise — a single mother of two who was holding down two jobs and attending school in 2015 — is more familiar than most with the problems of our broken system. When a sibling who suffers from mental illness filed a charge against her, Wise was arrested and detained, with bail set at $100,000.

Wise could ill afford to pay the $1,000 needed to secure release through a bail bondsman. Her family pawned their belongings and asked friends to pitch in to come up with enough money to free her. By then, Wise had been in jail five days. It could have been much worse: Had her family not made her bail, she would have spent three months in jail, away from her children and her work, until the scheduled hearing that got the charges dismissed. More likely, she would have become yet another innocent person pleading guilty in order to secure a certain release date.

Americans are innocent until proven guilty and constitutionally guaranteed the right to a speedy trial, but those who spend months in jail awaiting trial can be forgiven for questioning whether the government is upholding these guarantees. When they are accused of nonviolent crimes and detained simply because they cannot afford bail, allowing accused individuals to keep earning money, and not putting their jobs at risk before trial seems like a fair request.

A 2018 study supports pretrial work release programs. Analyzing data from more than 400,000 defendants in large, urban counties in Pennsylvania and Florida, it suggests that pretrial detention of low-risk individuals does not result in improved public safety. It does yield more unemployed defendants and — disturbingly — more defendants who are convicted, due, in part, to an uptick in guilty pleas. It’s unclear whether pretrial detention encourages guilty defendants to come clean, or instead coerces the innocent to plead guilty to better control the time they may have to be away from their jobs and families.

Pretrial work release programs would allow defendants in jail, deemed eligible for bail yet unable to afford it, to return to their jobs or go to a new job while awaiting their trial. Similar in function to standard work release programs for those convicted, pretrial programs generally order defendants, after completing their day’s work, to return to jail at night where they are supervised by correctional staff. Being able to work helps defendants make bail, in which case they can then be fully released into the community to await their trial, without having lost significant wages or their jobs.

All such programs would be good for counties’ budgets. In many states, taxpayers aren’t responsible for housing or supervising a defendant while they work. In some cases, a portion of the individual’s earnings goes toward the cost of housing the individual in the facility at night.

When defendants are able to earn enough money to make bail, the costs go down even further. The jail population shrinks, and counties can focus their resources on holding those who pose the greatest risk to society. And preventing defendants who are later proved innocent from losing wages and jobs, also saves taxpayer money in the long run. For states with the largest pretrial populations, work release programs may reduce correctional costs by millions — a win for the accused, families and taxpayers.

For those awaiting trial who are found guilty of a crime, pretrial work release may later dovetail with prison work release programs, allowing individuals to continue working while serving their sentences. Indeed, studies show that securing employment and working steadily is the key to reducing recidivism — and the sooner inmates find employment, the better.

The United States needs sweeping jail reform. Sophisticated risk assessments should be used to separate the dangerous from those who are not. Diversion programs rather than warehousing in jails should be the rule. Money bail should be revamped so that its costs and constraints don’t needlessly fill jails with the poor.

But before legislatures can enact such sweeping changes, we need stopgap measures that work within the current criminal justice apparatus to get low-risk defendants out of jail before trial. Some counties already include pretrial defendants in their work release programs; the practice should spread. Giving those accused of crimes the chance to keep working or to find jobs will move the system closer to the reform that states and cities desperately need.

Image credit: MikeDotta