Reform, not regression

February 18, 1991

There's an old saying, "the rich get bail, the poor get jail."

That bit of folk wisdom simply underscores that one of the most anachronistic features of the modern criminal justice system is the enduring role of money bail as a condition for pre-trial release. Money bail requires that a defendant post a specified amount of security in order to gain freedom while awaiting trial on a charge on which he or she might might not be guilty. Under the money bail system in its hey dey, a person charged with a crime who had the resources to post bail was quickly released from jail; a person who lacked resources either remained in jail awaiting trial or went to a professional bail-bondsman, who charged exorbitant fees for posting the security necessary to gain the release of the accused. Even if the person were ultimately acquitted, the bondsman's fee had to be paid.

This manifest injustice led to great reforms in recent years to make pretrial release a fairer procedure in which the nature of the crime and the danger to the community is a greater consideration than the ability of an individual to post bail.

But this reform has met resistance, some from a concerned public, but mostly from the well-financed bail bond groups. Two regressive bills dealing with bail-bond have been introduced in the state Senate in recent days.

One is plain silly. That is Sen. Mary Boergers' bill, which says a defendant charged with first-degree murder "may not be released on bail if the proof of guilt is evident or the presumption of guilt is great." This bill completely turns on its head a most cherished maxim of American law: The presumption of innocence before conviction. If passed it almost certainly will be overturned by the courts. The legislature can spare itself the embarrassment of such a rebuke simply by rejecting the bill.

The other measure is more insidious. A bill by Sen. John Pica is a frontal attack on pre-trial release services adopted by state and local jurisdictions in recent years in the interest of fairness. Pica's bill severely circumscribes the availability of such services, which generally rely heavily on release without money bail in cases where danger to the community is deemed to be low. Under Pica's proposal, a person would be ineligible for state or county pre-trial services if he or she were "financially able to post a bail bond or other form of collateral." Or if the accused person "has a history of escape . . . or failure to appear at trial." Or if he or she is awaiting trial on some other offense.

Mind you, such people could still be released on money bail -- if they could post it. They simply would be excluded from pre-trial release services.

Pica's bill is entitled "An Act Concerning Pre-trial Release Services." It ought to be entitled "the bail-bondsman relief act of 1991." And it ought to be defeated.

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