BY SHERIFF BRIAN ASBELL
I have not seen any proposed legislation related to the elimination of cash bail; however, I believe this will be a dangerous practice if not properly vetted. I am a proponent of true pre-trial reform which needs to be built on a foundation of economic and racial equity, but I am fearful that ending a cash bail system will only be replaced with another “system” which is equally, if not more dangerous than current practice. I am confident the state will be proposing some sort of pre-trial risk assessment method to replace the current cash bail system and by doing this, individuals will be held on pre-trial detention status due to their risk assessment instead of their inability to make bail because of economic status.
An algorithmic assessment will determine if an individual will be released or remanded to pre-trial detention. This has the potential to hurt the population in which new legislation intends to protect. Factors used in these assessments will be derived from criminal justice data – the same data which will reflect economic inequity, racism and over-policed geographic locations of our community. If the algorithm used for a pre-trial risk assessment tool is built from data from a system which has been deemed discriminatory, I believe the outcomes of these assessments will be discriminatory as well. For example, if an individual has been previously arrested and has a history of not appearing in court, this could be considered a risk-factor which would remand him or her to detention status. Or, the argument that African American males are stopped by the police more than white males, which has led to higher arrest rates, could influence a risk assessment if prior arrests are included into the algorithm.
My next concern is the jail has become a de facto behavioral health facility. Behavioral health includes both mental health and substance use, encompassing a continuum of prevention, intervention and treatment. I am in total agreement that the jail is not the ideal place to manage individual’s behavioral health needs, however, we have become the only available option due to the lack of community resources. The jail is the default answer for those who cannot follow the rules of society due to a mental illness and often related, co-occurring disorders. This must be addressed prior to implementing any type of pre-trial reform. Failure to not having this infrastructure will result with individuals re-offending, increased victimization and on an extreme level –– death.
Lastly, the safety of victims and witnesses in this discussion cannot be ignored. For illustrative purposes, just consider the offense of domestic battery which historically is one of the top offense types booked into the jail each year. Domestic violence survivors are often fearful of and subject to retaliation after an arrest and unfortunately their fears sometimes become reality. Will ending a cash bail system result in a streamlined pre-trial release for these offenders or will the risk assessment keep them on detention status? If kept in pre-trial detention status, is there not a presumption of innocence? If released and the victim is abused again, or murdered, did the system fail to protect him or her? There are many “what-if” scenarios which can be discussed, but a person’s perspective will be influenced once a situation becomes “personal.” Meaning if you, a family member or friend are a victim of a crime, there will be fear, hurt, outrage and a desire for “justice.” Will advocates for a no cash bail system feel the same if he or she is a crime victim and the perpetrator is either not subject to a custodial arrest or released hours after the crime was committed? I believe the answer is predictable…
The Illinois Bail Reform Act which went into effect Jan. 1, 2018, specifies that cash bail is not necessary for people who are in custody for a nonviolent misdemeanor or low-level felony charges (identified as Category B offenses). This system allows the accused to either be immediately released or have their bond amount lowered $30 per day and released once zeroed out. This reform measure is working.
Again, I am an advocate of criminal justice reform, but I do not believe ending the cash bail system is the answer. Instead, the focus needs to be on building true diversion programs which would allow law enforcement the option not to introduce certain offenders into the criminal justice system in the first place. Invest in desperately needed community resources: mental health and addiction treatment facilities, a strong public-school system and ending food deserts. Address the public defender system which has long been plagued by underfunding and excessive caseloads resulting in far greater racial and economic inequalities within the criminal justice system. As Sheriff, I strive to find a balance between public safety and social justice. I am fearful that ending the cash bail system will result in many unintended consequences which will hurt both the population that is intended to be protected and compromise police-community relations and confidence at new levels which will further damage the goal of legitimacy.