Social Justice vs. Criminal Justice by Bill Frymire
Jail overcrowding is an ongoing hot-button issue, with local governments and communities all across the country dealing with a lack of funds and resources to manage the growing prison population.
The finger of blame for the problem has often been pointed to the commercial bail industry. After all, as the argument goes, jails are overcrowded because the people sitting in them can't afford a bail bond. Unfortunately, as is usually the case when playing the blame game in these kinds of situations, simply removing the supposed cause of the problem seldom, if ever, actually fixes the problem. In this instance, the typical solution proposed is to eliminate commercial bail and instead, release persons who have been jailed on their own recognizance. In one easy step, the overcrowding problem would be gone, right? Well, maybe not. Here's something to think about -- three states have been prominently mentioned in various media as dealing with major jail overcrowding issues: Oregon, Illinois and Kentucky. Something else these states share in common is the unavailability of commercial bail. So how can bail be the root cause of overcrowding? The short answer is, it isn't.
As when dealing with any problem, it's important to honestly examine it from the top down, using well-reasoned methodologies, so that solutions are based on fact, not what we want them to be. In the case of jail overcrowding, the fallacy is the automatic jump to attributing bail as the issue when it is something else altogether.
The true problem lies with how we perceive the criminal justice system, which is fundamentally designed to uphold our laws and ensure accountability to those who break them. It is intended to be fair and impartial, while presuming that those accused of a crime are innocent until proven guilty. The 8 th Amendment to the Constitution is a part of this concept, which states that everyone has the right to non-excessive bail. Historically, the majority of individuals eligible are released prior to their trial by securing a bail bond through a bail bond agent. The defendant and typically, his or her family, pay a bail agent a premium to obtain a bail bond, which is basically an insurance policy. Through this bail bond, the family is guaranteeing that the defendant will appear for all scheduled court appearances or the policy goes into default and the full amount of the bond is due to the court. This accountability can be regarded as the "criminal justice" component of the pretrial release equation.
In addition to commercial bail, there are other forms of release designed to help those with special needs (e.g., those who are indigent or with substance abuse issues). These programs are publicly funded by tax dollars and are intended to be made available to those who meet specific requirements. In our pretrial release equation, these programs can be thought of as the "social justice" side of things.
When you look at our criminal justice system from the perspective of these two types of jail release, the overcrowding issue snaps into focus with a completely different look. Suddenly, we can see that the problem has everything to do with balancing two extremely important elements at the heart of our American way of life: social justice (fairness) and criminal justice (accountability).
Where we determine to draw the line of distinction can not only impact public safety, but also define the concept of accountability in our communities, while maintaining the credibility of our system.
If we embrace a 100% criminal justice approach and make anyone arrested secure their release from jail with a bail bond only, than we would have people with special needs languishing away in jail. On the other hand, if we institute a social justice approach entirely, then anyone could be released on an unsecured bond (basically a verbal or written promise to return to court). In that scenario, the system loses credibility and all sense of accountability. If an individual knows he or she is getting out of jail for free -- and that if they don't show up for court, no one is coming to get them -- there is little incentive for them to be answerable for their actions.
Applying the difference between social and criminal justice to the challenge of jail overcrowding can be extremely revealing. If our goal is to release individuals -- both pretrial and post-conviction -- back into public, while supervising their behavior, should we turn to a method of release that was designed to help those who couldn't help themselves (social justice)? Or should we turn to a solution that was designed to ensure accountability and guarantee performance (criminal justice)? Looking at it through this lens, it is easy to see that jail overcrowding isn't a social justice issue, but rather a criminal justice issue that requires a criminal justice solution.