In the public imagination, the most important elements of the criminal justice system is the trial, when a suspect faces charges, a jury renders a verdict, and a judge issues a sentence. Accordingly, many criminal justice reform initiatives have focused on changing what happens at that fateful time in the courtroom—specifically, softening sentencing guidelines so that convicts face less time behind bars.
But as we have noted before, much of the injustice in the American criminal justice system actually takes place in cases that never go to before a jury. Sentences have become more harsh the past decades in part because a growing share of suspects, especially indigent ones, are taking plea bargains—opting to accept a conviction instead of taking the risk of going to trial.
What accounts for the rise in guilty pleas? One cause is money bail. Prosecutors have more leverage over defendants who are waiting in jail for months or possibly years for their trial date than over those who can post bail and go free as they contest a charge. That’s why studies show that for people charged with similar crimes, those who are assigned bail are significantly more likely to be convicted.
Fortunately, some policymakers are starting to be attentive to this grey zone between when suspects are arrested and when they face trial. WBHM radio reports on a new initiative in New Jersey designed to ensure that poor defendants get fairer treatment by reducing bail usage:
More than half of the people being held in U.S. jails have not been convicted of a crime. In 2013, a study found that three-quarters of people in New Jersey county jails were waiting for their day in court. Forty percent could have walked out of jail, except they couldn’t afford to make bail. Starting next month, New Jersey hopes to drastically reduce its reliance on bail money. […]
Here’s how the experiment will work. Starting next month, judges in New Jersey will use what’s called a risk-assessment tool to help decide if a defendant is likely to flee or commit another crime. For high-risk defendants, judges can order them held without bail, like the federal system. On the other hand, judges are encouraged to release the majority of low-risk defendants without bail.
Lawmakers in other states should pay attention to this new program. There are probably tradeoffs involved—defendants released without bail might get arrested again, for example—but it’s also possible that the negative consequences are minimal, or that they are worth exchanging for a fairer system overall.
The key to criminal justice reform, for those interested in making the system fairer rather than picking high-profile political battles, is not police misconduct or even mandatory minimum sentences. It is changing the complex dynamics at play in the plea bargaining phase, when the vast majority of cases are decided. The goal should be to give defendants more of an opportunity to mount a defense, and, if they wish, get their day in court, rather than burying them with high bails and coercive pleas.