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Why Kansas conservatives should support eliminating cash bail


KBAA Response: 

No, Mr. Samburg, Conservatives should NOT support the elimination of secured release  bail. 

While Mr. Samberg is, no doubt, earnest in his thoughts, they are unfortunately little  more than progressive, anti-bail talking points. 

“Study after study indicates that cash bail is not imperative for ensuring trial  attendance.” This is FALSE. In fact ALL of the largest studies have shown the exact  opposite. The largest study was conducted by the Bureau of Justice Statistics and  reviewed 750,000 cases over a period of 12 years. This study showed that defendants  released on secured bail had the lowest failure to appear rate of all forms of pretrial  release at 18%. Personal recognizance signature bonds failed to appear at almost twice  that rate (30%) and Emergency Releases failed to appear at a 45% rate. Mr. Samberg,  had he done his own research, would know this because he cites numbers about  average bond amounts which came from this very same study. But clearly, his  “research” is to simply parrot these talking points. 

He cites Washington DC as a positive application of this progressive no-bail policy, yet  fails to mention that the program spends $60 Million per year to “supervise” 6,000  defendants. That’s $10,000.00 per defendant and the crime rate is DC is among the  worst in the country and their jails are still bursting. Can Kansas afford to spend $10,000  for each pretrial defendant? If so, perhaps that money would be better spent in the  education budget. 

New Jersey is supposed to be another shining example of progressive policies and he  falsely claims that 95% of defendants were released on a pretrial basis [This is  inaccurate as the State of New Jersey actually filed for preventative detention hearings  in 44% of their cases.] Of those defendants who were released pretrial, they did appear  at 89% of their scheduled court dates, but they appeared at 95% of their scheduled  court dates under the previous system. This is a 58% increase in the number of failure  to appear in New Jersey. And this came at the bargain basement price of over $250  Million in costs, which programs, despite being sold to the public as revenue neutral,  are ALREADY operating in the red. 

Like New Jersey, New Mexico altered is Constitution to take away the right to bail [so  much for the presumption of innocence] and engaged in a policy of releasing almost  everyone else who wasn’t denied bail. The results were predictable. Albuquerque is 

now the #1 city is the nation for auto theft and violent crime is on this rise. New Mexico  uses lots of electronic monitoring to help ensure defendants appear. However, over  30% of released defendants never actually show up to have the ankle bracelet put on.  The failure to appear rate in New Mexico is well in excess of that 30%. The preventative  detention standard in New Mexico is so high that judges in New Mexico were forced to  release without bail a group of Islamic extremists who were allegedly operating a mass  shooting “training camp” where police found a dead body and at least one of the  defendants was not even a citizen, but no bail requirement for those people. 

In Houston, Texas, as part of a progressive lawsuit Judges agreed to release virtually all  misdemeanor cases on so called signature bonds (i.e. non-secured). Three months into  the program the failure to appear rate was 49.3%. Barely half of the defendants  returned to address the charges against them. Houston is now on pace to have a  second record breaking year for homicides. Evidently, these defendants do not limit  their criminal behavior to just misdemeanors. 

New York passed anti-bail legislation that went into effect January 2020. Prior to Covid  lockdowns, crime immediately exploded in the first 3 months of the year (it didn’t slow  down after Covid either). Politicians as far Left as Cuomo and DeBlasio acknowledged  that this was directly related to lenient bail policies, because to quote the Mayor  “Nothing else changed.” Once chance – lenient bail – cause crime to spike. 

In fact, this scenario has repeated itself across multiple Blue cities and states in recent  years. Virtually every Blue governed city that is suffering from a newly burgeoning  murder rate has recently adopted some sort of ultra-lenient bail policy. Philadelphia,  Baltimore, Los Angeles, San Francisco, and closer to home, both Kansas City and St.  Louis are now ranked in the top ten cities in the nation for violent crime following the  Missouri Supreme Court’s dalliance into bail policy requiring more lenient pretrial  release. A quadruple homicide in Kansas City Kansas was committed by an individual  who has just been granted unsecured release in KCMO. 

Following the Bail Reform Act of 1966, the nation saw an unprecedented explosion in  violent crime that lasted for almost 30 years and really didn’t begin to reverse itself until  the use of bail began to increase after the first Bureau of Justice Statistics study was  released in 1994 showing the effectiveness of secured bail (this also coincided with the  1994 crime bill and Bill Clinton’s 100,000 officers on the streets initiative). When one  compares a graph showing the use of secured bail as a percentage of pretrial release to  a graph showing the violent crime rate, it is readily apparent that as the use of secured  bail increases, violent crime begins to recede. There is a direct correlation: More Bail =  Less Crime. 

Mr. Samburg postulates that the Presumption of Innocence requires that we release  people without bail. This is inaccurate, the Presumption of Innocence is the REASON  we have bail. If we did not have this presumption there would be no reason for bail at  all. We could simply detain anyone without recourse. Bail balances competing interests,  on one hand, the rights of the defendant to be free until conviction versus the rights of 

the people to ensure that the defendant appears for trial. The system that Mr. Samburg  advocates for requires the use of Preventative Detention (he states “defendants who  may pose dangers to the public will not be released pretrial.” Very Orwellian sounding.  This means holding people without any possibility of pretrial release, based upon what  they MIGHT do. These people are also presumed innocent, but are evidently the  sacrificial lambs for his utopian pretrial system. Unfortunately, Paradise will always be  quickly Lost. For example, the 1984 Crime Bill authorized the use of preventative  detention at the federal level. Prior to 1984, only 26% of federal defendants remained in  custody throughout the pendency of their cases. Today that number has grown to 72%  of federal defendants are denied bail altogether. If you give the government the power  to lock you up with absolutely no recourse they WILL use it. 

The State of Kansas simply cannot afford, either financially or morally, to “Preventatively  Detain” 72% of its charged defendants based upon what they might do. 

Allowing the government to simply “Preventatively Detain” its citizens with no recourse  is NOT an action that any civil libertarian would support (even the ACLU argued against  this back in the 80s), and it is certainly not a position that any conservatives should  endorse. 

The idea that eliminating an entire private industry, i.e. the professional bail bondsmen,  and replacing them with government bureaucrats is actually an exercise in “limited  government” is simply laughable. In California, the bluest of blue states the voters there  rejected a call to eliminate the bail bond industry. The largest group to push for the  elimination of bail was the Public Sector Employees Union, which spent millions  opposing the ballot measure, because they were well aware that such a plan would  results in tens of thousands of new government employees who would be dues paying  union members. Eliminating the right to bail DOES NOT result in a smaller, limited  government, rather it results in sprawling bureaucracies of which the Federal  government is replete with examples. 

Secured bail is often the first, and sometimes last, chance for family and friends to  intervene in the downward trajectory of a defendant. A defendant with serious drug  issues may do best remaining in custody for a period of time for a forced withdrawal. A  spouse on the trailing edge of a failed relationship may be unstable and not the best  candidate for a quick release. A defendant who has victimized his family by stealing  from them and abusing them repeatedly may end up sitting in custody for a while at the  discretion of that very family. Families often condition their assistance upon specific  behavior from the defendant, drug treatment, get a job, etc. But these are decisions that  are best left to those people who know the defendant best. They are not best left to the  vicissitudes of a callous bureaucrat following some 5 point computer based risk  assessment policy. 

In short, Kansas will not be well served by attempts to eliminate an entire private  industry and replace it with an army of government employees. Everywhere that this  has been attempted it has been an utter failure, expensive and has increased crime. 

Progressives care little for the actual functioning of the Criminal Justice System, which  is one of the pillars of any society based upon law. Rather they want to tear it down a  piece at a time, since Criminal Justice is just another name for Oppression, either racial,  class based, or some other parsing of social groups. If bail is eliminated, their attention  will return to “abolishing the Police” and tearing down the system of law and order one brick at a time. Conservatives should not attempt engage in this type of appeasement. 

Shane Rolf 

Vice President 

Kansas Bail Agents Association