Earlier this year, Mecklenburg County, N.C., District Attorney Spencer Merriweather implored North Carolinians to embrace statewide bail reform, echoing points made in many districts across the nation.
While Merriweather’s and others’ call for reform is laudable, policymakers everywhere must not forget to consider any bail reform plan’s effect on the presumption of innocence before deciding on a way forward.
The presumption of innocence is a fairly straightforward legal principle: Individuals who have not been convicted of a crime are to be deemed innocent until proven otherwise. A cornerstone within the American legal system, this principle traces its heritage back to documents such as the 800-year-old Magna Carta and the Code of Hammurabi.
Its significance in America is reflected in the words of American leaders such as President John Adams, who stated, “It’s of more importance to the community, that innocence be protected, than it is, that guilt be punished.” The goal of the presumption of innocence is to limit any suffering by the innocent by instituting due process, which protects their ability to put on a strong defense and ensures that anything resembling punishment occurs after conviction.
In fact, the presumption of innocence is responsible for the “presumption of release” that prevents judges from denying bail outright in most cases. In North Carolina, judges are not allowed to detain a person before trial unless they’re charged with a capital offense.
But this is where things often get messy. In practice, concerns surrounding some individuals’ potential danger to the community have led judges to skirt this policy by ordering defendants to pay high amounts of cash bail as a de facto detention mechanism.
This, in turn, creates a system in which the wealthy can buy freedom regardless of their public safety risk while the poor languish in jail for days or months while awaiting their trial. In 2015, pretrial detainees made up as much as 82 percent of the entire North Carolina jail population. And in places like Dixie County, Florida, this percentage was closer to 93 percent.
Merriweather and others want to fix this issue by removing cash bail from the system and potentially giving judges more room to detain people charged with violent crimes. While well-intentioned, this policy change would give judges latitude to deny bail in a greater number of cases, thus still undermining the presumption of innocence.
Detaining people before trial hampers their ability to successfully defend themselves in court and can coerce them to take plea deals. Communication with jailed individuals is notoriously cumbersome and can be cost-prohibitive, making preparing for one’s case far more difficult than if one was in the community.
On top of this, the longer individuals are held behind bars while awaiting their trial, the more likely they are to lose their jobs and suffer mentally and emotionally due to uncertainty regarding their fate and the separation from their families and community.
All of this makes getting out of detention a priority, making quick pleas — even for crimes for which one is not guilty — more attractive. Indeed, studies have drawn a clear positive relationship between pretrial detention and the likelihood a person is convicted, often due to an uptick in plea deals.
This conclusion is also supported by research finding that reforms in Mecklenburg, which sought to reduce the use of cash bail and pretrial detention, have resulted in fewer guilty pleas and convictions.
Additionally, those held pretrial are detained in similar conditions as those to which they could be sentenced if found guilty. It’s for this reason that so many judges later give convicted individuals “credit for time served.” All of this should be concerning to those of us who believe in the principle “innocent until proven guilty.”
In the end, policymakers and the public may conclude that expanding preventive detention in certain cases may help us move away from an unfair cash bail system.
Even then, drawing a hard line allowing for preventive detention at the point at which offenses are legally categorized as “violent crimes” likely misses the nuance needed to understand the public safety risk in a particular circumstance (to the extent a state’s law even allows bail decisions to be informed by this).
Ultimately, policymakers must acknowledge that eliminating cash bail and expanding the use of preventive detention does little to remove current practices’ conflict with the principles upon which this nation’s justice system was founded.
They must ask themselves: Is it worth it?
