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Jailed without conviction: Behind bars for lack of money

About 10 million people are jailed each year for crimes large and small. Most – two-thirds of the 750,000 in jail on any given day – stay long periods without conviction at great cost to the public and to themselves because they can't afford bail.

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Reform that can save public expense

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Jail costs have increased more than 500 percent during the past 30 years, according to US Department of Justice data. And most jails are paid for by cities and counties, which are struggling to balance budgets and have – as a result – expressed increasing interest in pretrial service programs, says Murray.

Currently, about 300 pretrial service agencies exist, serving roughly 1,000 of this country's 3,000-plus counties. But that number will probably grow, because the National Association of Counties recently threw its support behind the idea of pretrial detention reform, joining a list of nearly a dozen national organizations representing police chiefs, probation and parole officers, jailers, sheriffs, prosecutors, criminal-defense attorneys, and legal aid lawyers.

Tara Klute, a national consultant on pretrial justice issues, says she also sees momentum as new agencies launch and others expand. She understands the motivations of county officials because she's spent 17 years heading the statewide Kentucky Department of Pretrial Services, which covers 120 counties. Often, Ms. Klute says, she hears from counties elsewhere hoping to trim jail budgets. "[O]nce they see the concept of pretrial, it's a pretty easy sell."

In the District of Columbia, Police Chief Cathy Lanier is considered one of the "staunchest supporters" of pretrial services. In speeches, she has emphasized that a strong pretrial services system helps the district strategically focus its law enforcement resources on the "roughly 5 to 6 percent" of violent, dangerous repeat offenders who create "80 percent" of the problems.

Morrison, the Washington judge, traces the growing interest in "pretrial justice" to increased attention from researchers. But he's cautiously optimistic. Washington courts have operated pretrial services since the 1960s, so his colleagues are used to the program, he says, while in other places, his judicial peers may view such a new agency as a challenge. After all, adds the judge, his "is the only line of work where I, inexorably, have the last word."

Bail is not supposed to be punishment

Klute presides over a pretrial system considered a success story. The state of Kentucky established statewide pretrial services in 1976 and is one of only four states without commercial bail. Today, Kentucky counties release an average of 76 percent of defendants on nonfinancial bonds, a rate that has risen recently because of a 2011 state law that requires judges to consider pretrial services' risk assessment when making release decisions.

As a result, in some Kentucky counties, only 3 percent of defendants must put up money for release. To an outsider, there is no rhyme or reason to the rates by county – some require up to 80 percent of defendants to put up money.

Some critics say that judges in Kentucky and beyond set bonds because they're corrupt or tied too closely to longtime bondsmen, who finance campaigns. Klute says it's more complicated, that release rates reflect "the culture in individual counties."

Morrison says that in some places, bail is seen as punishment. He cites an example of a judge who says, "It looks like the message hasn't gotten through to you, Ralph," and then sets a $50,000 bond, with hopes that Ralph will stop stealing from Wal-Mart.

Many in the general public believe that anyone arrested should pay bail as a sort of penance. But, says Morrison, that's "an absolutely impermissible use of bail," unsupported by law.

In some places, judges' caution can be explained.

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