Editorial

We don't ask dental patients to post a $50,000 bond for an x-ray. Why do we do it for criminal defendants?

Going to the dentist is a pain, often literally. Patients know they need to have their teeth cleaned and their cavities drilled and filled, but no one actually looks forward to going. Besides, keeping the appointment means taking time off from work and paying too much for parking.

It’s a similar story with appointments for flu shots, brake repairs, tax filing and anything else that people know they have to do but would rather not think about. It’s human nature: If you might get some bad news when you show up (“You owe the IRS $12,000”) or physical pain (“It looks like we’re going to have to do a root canal”) or inordinate delay (“Sorry, we won’t have your transmission done for a couple days, but you can wait in our customer lounge”), you’re more likely to put the appointment out of your mind. You’re more likely not to appear — either because you simply “forgot” or because you irresponsibly shirked your obligation.

So to make sure the patients show up, does the dentist ask them to post a $50,000 bond? If they don’t have that money on hand do they get chained to the X-ray machine to make sure they’re still there for the appointment a month later?

Of course not. The dentist’s goal isn’t to punish or gouge the patients, or to house and feed them for a month, but to ensure that they show up for their appointments. The office makes a call or sends a text reminder a couple days before, and then again on the appointment date. It usually works. Would it also work — instead of bail or jail — for a criminal defendant who is ordered to appear in court?

It does in the District of Columbia. Instead of requiring defendants to post bail, and locking them up if they have no money, court workers call them to remind them to show up.  The D.C. courts report that the vast majority — nearly 9 out of 10 — make their appearances on time, assisted by reminders. That’s about the same appearance rate as for defendants in other jurisdictions who are charged with similar crimes, are out on bail and have no reminder to appear.

That experience suggests that many defendants who fail to show up just forgot, and that a reminder works as well as bail in getting them to appear. 

It’s also far fairer to defendants who otherwise would be stuck in jail for weeks or months before trial only because they have no money for bail. After all, they haven’t been convicted of anything but are merely accused. For one person to go free because he has money for bail and another to be locked up because he doesn’t is simply unjust.

And un-American? That’s what Los Angeles County Supervisor Sheila Kuehl implied in remarks at last Tuesday’s board meeting. To the nation’s great shame, though, a system that treats the rich and poor differently, and which consequently has vastly unequal impact on white and nonwhite defendants, is all too American.

California Chief Justice Tani Cantil-Sakauye on Friday appointed a 10-judge group to rethink bail and pretrial detention in California. Rep. Ted Lieu (D-Los Angeles) has introduced a bill to eliminate money bail in the federal system. Sen. Bob Hertzberg (D-Van Nuys) has written a bill to limit it in California. L.A. County Supervisor Hilda Solis — noting that half the county’s jail space is taken up by pretrial defendants, many of whom are there only because they can’t pay bail — noted during a debate on new jail construction that locking up those defendants costs far more than supervising them out of jail. Kuehl said she is convening a group to study bail reforms in L.A. County.

It’s time. The current bail system in California and most other U.S. jurisdictions relies on the highly questionable notion that accused people who can put up large amounts of money as bail are a lower risk to flee or commit crimes than people who can’t. Criminal defendants should instead be jailed or conditionally released — perhaps with electronic monitoring or supervision by probation officers —  based on the risk they pose and not the money they have.

That’s how it works in D.C. — and in similar systems and pilot projects in Kentucky, Oregon, Wisconsin, very soon in New Jersey and now even in Santa Clara County, Calif., following a vote there last month by the Board of Supervisors. Risk assessment tools and protocols are far more sophisticated than they were even 10 years ago, not to mention in ancient days when the bail system was developed. We can do better.

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