At a time when the unfairness and ineffectiveness of our criminal legal system is on display for all to see, it is both ironic and discouraging that some opinion leaders argue part of the solution could be abandoning the bedrock principle of our American criminal legal system: all of us are innocent until proven guilty.
As we grapple with the uprisings related to the shooting and the killing of Black people by police officers and as we all reckon with systemic racism, which in Chicago is coupled with the corruption and dishonesty within the Chicago Police Department, the presumption of innocence has never been more important.
This principle isn’t a nice idea to be swept aside when we are confronted with challenges. It must be embraced, and it must extend to allowing the accused to be free of jail pending trial. A determination of whether someone can bond out of jail should be made by a judge considering a variety of factors about whether that person is a danger to public safety and not be based solely on the degree of violence of the crime allegedly committed.
Consider the facts about our pretrial justice system, electronic monitoring, and crime.
Fact: People released pretrial from Cook County Jail are not driving the violence in Chicago. Data has been meticulously gathered by multiple authorities, both inside and outside of government, that show only a small number of people have been arrested for allegedly harming someone after being released. According to documents obtained from the Cook County Sheriff, murder charges are pending against 1,072 people in the county. Only 4 percent of them have been allowed to leave jail on the condition they wear electronic monitoring devices, and nearly all of them were forced to post a cash bond.
Fact: Every criminal case, and every arrested person, is different. Not all arrests end in convictions, and many of the people currently charged with murder will be found not guilty of their charges or have them dismissed for lack of evidence, often after years of pre-trial incarceration. Our courts should be making careful, well-reasoned decisions about whether any individual person, in any individual case, must be incarcerated in order to protect the public.
Fact: Access to money now is a primary determinate in whether a person is free of jail pending trial. Even if you are charged with murder, if a judge determines the public will be safe with you on electronic monitoring, you can return to your home with an ankle monitor — but often, only if you can also pay a large monetary bond. Money, not public safety risk, keeps most in jail. Hundreds of poor people now await their trials in a cage instead of in their homes.
Our justice system is both expensive and ineffective. Now is the time to stop relying on outdated tactics and follow the lead of states around the country that have ended money bond.
There should not be an automatic assumption made that people who are accused of violent crimes are threats to public safety. The Chicago Police Department and Fraternal Order of Police have been leading the calls for more pretrial incarceration now but were utterly silent when Jason Van Dyke shot a person on camera, was charged with murder and spent essentially no time in jail before his trial, despite violating conditions of his release.
Meanwhile, hundreds of individuals that police insisted be incarcerated for murder and other crimes were later found not guilty or had their convictions overturned because of police misconduct.
Placing the failures of current policies at the feet of accused people is bombastic rhetoric and thwarts efforts to achieve the safety that all Chicagoans deserve. Discarding the principle that all are innocent until proven guilty adds millions to the cost of running the Cook County Jail, and the corresponding loss of faith in the fairness of our criminal justice system is detrimental to public safety.
The question that everyone should be asking is: “why do we continue to fund reactions to violence at a massively higher rate than interventions that prevent violence?”
Patrice James is Director of Community Justice at the Shriver Center on Poverty Law, and Sarah Staudt is Senior Policy Analyst and Staff Attorney at Chicago Appleseed Fund for Justice.
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