The Constitutional Crisis No One Is Talking About
Preventive detention is not the answer to a decade of unaccountable release
In this series, we examine why expanding preventive detention and limiting the constitutional right to bail is the wrong response to failures in the pretrial system. Stay tuned next week for Part 2.
In response to crime and the lack of accountability left in the system, many jurisdictions are looking to solve the problem by getting tougher on crime. So tough that they are willing to change and amend one of the most foundational components of their state constitutions, the right to bail. But what these extreme proposals don’t understand is that amending a state constitution to expand detention and limit the right to bail is not a solution to prevent crime.
Over the next two to three weeks, we will talk about this important issue in detail in our three-part article series on the constitutional crisis no one is talking about. Our goal: to show just how misguided, extreme and unnecessary a constitutional change is.
A Simple Solution – Stop Releasing Defendants for Free
When judges release defendants without accountability and without financial security and the result is lawlessness and crime, the solution is not to just lock more people up. The solution is to stop releasing defendants pretrial without the proper safeguards in place to ensure accountability and appearance in court.
Crime isn’t increasing because judges are releasing people pretrial. Crime increases because judges are releasing people pretrial with no one responsible for their return. Meanwhile, failure-to-appear rates increase, caseloads stack up and the length of each case extends way beyond an acceptable time frame.
These are process problems and accountability problems. Problems that are not solved by converting the presumption of innocence into a broader power to lock people up before trial. And these are not problems that require the extreme and unnecessary action of permanently changing a state’s constitution.
Getting to the Heart of the Problem
For more than a decade, bail reform advocates have treated cash bail as the original sin of pretrial justice. The correct insight in that movement was narrow and important: a person’s liberty before conviction should not depend only on how much money they have. The error was ignoring the data and the historical success of secured bail and instead treating that myopic insight as a complete theory of pretrial release.
Once financial conditions were stripped away in some jurisdictions, the system did not automatically produce more liberty or more safety. It often produced reckless and unaccountable release processes.
No longer did each release contain a powerful circle of influence of family members, employers, neighbors or sureties standing with and behind the defendant. No longer did any interested party have an incentive or reason to locate the person after a missed court date. Yes, government pretrial offices sent texts and imposed monitors, but is that really oversight or accountability?
If there is one thing we have seen over the past decade, it is that if there is no real punishment or accountability for non-compliance, the public will continue to see the same defendant names and crimes over and over again, often before the first case has even been tried.
That is the scandal. Not that bail existed. That release became a simple bureaucratic paperwork event rather than a structured act of responsibility.
The second scandal is speed. A pretrial system that takes a year to resolve a case will always look like a public-safety crisis because the window for re-offense, intimidation and disappearance is measured in months. Preventive detention pretends to close that window by expanding jail. And that expansion happens at an extreme cost to taxpayers.
Faster charging decisions, tighter continuances and trial-ready dockets close it by doing the job courts exist to do.