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The law of unintended consequences: How federal judges may be driving up crime rates

Despite the fact that tough-on-crime rhetoric may have cost them votes in the midterms, prominent Democrats continue to double down on calls to roll back bail reform. Earlier this month, New York Gov. Kathy Hochul (D) doubled down on her calls for bail reform efforts to be walked back, urging legislators to expand judges’ ability to lock up the accused while awaiting trial.

She’s not alone. New York City Mayor Eric Adams (D) has been beating the drum against bail reform for months — and New Jersey lawmakers recently introduced a bill to scale back the state’s landmark bail reforms. Amid growing concerns about violent crime, politicians have seized on the idea that locking people up before trial leads to safer streets.

The problem is that decades of research show that mass pretrial incarceration actually undermines public safety. And a new study from Professor Siegler’s Federal Justice Clinic at the University of Chicago Law School suggests that judges are making the problem worse.

According to one well-known study, locking even low-risk arrestees in jail for just two or three days increased the likelihood that they are arrested for a new crime by 40 percent. What’s worse, people jailed pretrial often lose their jobs, homes, and custody of their children

This is nothing new. Policymakers across the political spectrum have long acknowledged the cascading, harmful effects of pretrial jailing. Ironically, the perils of pretrial detention led to the passage of federal bail reform signed by President Reagan in the ’80s, an era most liberals consider the modern epicenter of mass incarceration. Still on the books, the Bail Reform Act of 1984 flatly prohibits judges from jailing people who are too poor to pay for their freedom.

Despite that law, federal pretrial detention rates remain stubbornly high. And nationwide, an estimated one-in-four of the nearly 2 million people caged in jails and prisons are people awaiting trial, at a cost of more than $14 billion annually

So what’s going wrong?

For the last two years, Professor Siegler’s Clinic studied the decisions of federal judges presiding over the cases of people accused of a crime who are awaiting trial and presumed innocent. Their research shows that federal judges regularly violate the very bail laws that they are sworn to uphold, locking people in jail who should be released.

Professor Siegler’s study found that federal judges are jailing people unlawfully in 12 percent of cases, without any evidence that the person is facing a serious crime or poses a serious risk of flight, as required by the Bail Reform Act.

Federal District Court Judge Judith Levy put it this way: “We have a crisis on our hands, and some of the blame falls on judges. Jailing people before trial ruins lives and may undermine public safety. Federal judges need to follow the law.” Perhaps the path to safer streets runs not through tougher laws, but closer scrutiny of the judges responsible for our pretrial detention crisis.

Judges’ continued reliance on cash bail is also contributing to the problem. Although it’s illegal under Reagan’s 1984 law, Professor Siegler found that federal judges regularly set bail that defendants can’t possibly afford to pay. In Miami, it is commonplace for federal judges to saddle indigent people with $250,000 bail bonds, knowing full well that the person will remain in jail because they are too poor to pay. Across hundreds of cases, every single person jailed on a high bail bond in Miami was a person of color. What’s worse, in over one-quarter of federal courthouses in this country, people who do not have the money to pay for a lawyer are regularly locked in jail without a lawyer — a practice that federal law clearly forbids. 

Taken together, the evidence points to a clear but perhaps counterintuitive conclusion: Judges’ refusal to follow the law is destabilizing communities, and may be contributing to the very crime wave they are trying to avert.

The good news is that efforts are underway to curb such abuses. Evidence of judicial lawlessness was a motivating force behind bail reform in Illinois, which was poised to become the first state to entirely eliminate cash bail until opportunistic litigation delayed implementation. Following advocacy by local organizations and the American Civil Liberties Union, Shelby County, Tenn., adopted reforms that prohibit jailing people simply because they cannot afford bail. And in Harris County, Texas, a 2016 federal lawsuit led to dramatic increases in pretrial release but zero increases in crime

To be sure, the alternative is not a wanton disregard for community safety. Many of these new measures simply require judges to stop jailing people out of fear and custom, and instead base their rulings on the law and the evidence. Federal judges should follow suit. After all, when federal judges released more people federally during the pandemic, public safety did not suffer. Consistent with this insight, the Department of Justice just issued a new directive to all federal prosecutors reminding them that there “are cases in which [pretrial] detention is not warranted” and emphasizing that every person has the right to a lawyer during federal bail hearings.

It is only natural to be concerned about public safety. But locking people in jail pretrial undermines that objective. Laws designed to balance the rights of the accused with legitimate concerns about community well-being have been on the books for decades. We must therefore demand that judges uphold those laws. Our collective safety depends on it.

Alison Siegler is Clinical Professor of Law, Director of the Federal Criminal Justice Clinic at the University of Chicago and Brandon Buskey is director of the ACLU’s Criminal Law Reform Project.

Tags Crime Eric Adams Kathy Hochul

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