Pre-Trial Release Works In Denver

From City Councilman at Large Doug Linkhart's regular e-mail update:

17,000 days in jail. That's how many bed days were saved last year by the enhanced Pretrial Release program funded by the Crime Prevention and Control Commission. At a cost of just over $160,000, the program eliminates the need for over 50 beds per year, saving about $60,000 in construction costs and $22,000 in operating costs per bed.

The Pretrial Release program reviews the status of individual inmates to determine who can be released on bonds while they await trial. Denver County Court refers inmates who are judged to be safe to the Pretrial Release program. If this program determines that an inmate is judged safe enough to be in the community, they will be placed on a "personal recognizance bond" which often requires a monetary deposit, an electronic monitor and other safety precautions. So far the program has a success rate of over 82%.

The pretrial program is one of many programs being funded by the Crime Prevention and Control Commission, which I helped form and Chair. Others include the Drug Court, Mental Health Docket, Reentry Services and Metro Denver Gang Coalition and the implementation of the Comprehensive Gang Model. Together, we are hoping that the jail bed savings will not only reduce the need for new jail space in the future, but also reduce crime and its impacts on our community. Plus, a reduction of something like 17,000 days in jail means that a bunch of people who would otherwise be in jail can be out making a living, raising kids and contributing to our community.

This is an experiment that has been conducted from time to time for decades, usually with similar results, in other municipalities across the nation. So, the result is no surprise.

Simply put, only weak evidence supports the theory that having money which will be forfeited by the court if one fails to appear at court, called a bail bond, makes a typical defendant more likely to appear. The bail bond system is enshrined in the Bill of Rights, but it wouldn't be the only constitutional right (the right to indictment by a grand jury in federal criminal proceedings is another) that doesn't have its intended effect.

The main difference between a typical defendant who posts bond, and a typical defendant who does not and instead stays in jail until trial, is often ability to pay, rather than flight risk. A right to pre-trial release by posting bond is meaningless if you have no assets, and a large percentage of all criminal defendants are indigent.

In part, this is because a large share of bonds are posted by bail bondsmen and guaranteed by someone other than the often judgment proof, low asset defendant, in exchange for a non-refundable fee often paid by friends or relatives. The risk of someone else's money being forfeited is a weak incentive to appear, and bail bondsmen are better at judging the likelihood that a defendant will show up, which other screeners can do just as well, than they are at actually getting them to do so.

Linkhart doesn't cite a figure in his e-mail, but the percentage of defendants who post bond and fail to appear certainly isn't 100%. Also, in addition to jail costs, not releasing defendant's prior to trial also imposes other costs on prosecutor's offices, public defender's offices, the courts, and law enforcement, because these cases have to be put on a fast track.

Long Term Impact

Also, if you are being detained prior to trial, you have a strong incentive to enter into a plea bargain to a minor offense for time served, even if you are innocent. Fighting the charges simply leaves you in jail longer (at least until the trial is complete), and you receive no compensation for your time in jail, lost wages, or criminal defense related expenses, if you are acquitted. But a plea bargain does leave you with a criminal record, and the inability of low income people to post bond is one reason that low income are more likely to have a criminal record.

A criminal record, in turn, tends to increase your sentence in a subsequent criminal conviction, and also tends to reduce your change of prevailing in a criminal prosecution. One of the main reasons that criminal defendants often don't testify in their own defense in criminal trials is that the prosecution can offer their criminal records to impeach their testimony. So, a plea bargain driven by an inability to post bond can make it harder for that person to defend future criminal charges.

Since poverty and race are intertwined, this is an important factor in racial disparities in our criminal justice system. Wider use of personal recognizance bonds reduces the impact of race and class on the criminal justice system.