Our bail system is broken; here’s how to fix it

Mark Holden, General Counsel and Senior Vice President, Koch Industries, shares the Koch perspective

May 10, 2018

Jails across the United States are filled with people accused of crimes but not convicted, locked up simply because they cannot afford bail. They are victims of their own circumstance, taken advantage of by a system that preys upon a fixed cycle of incarceration and recidivism. In pursuit of a criminal justice system that protects public safety, and is fairer and more just, Koch Industries believes that individuals charged with a crime should not spend months or even years languishing in jail cells simply because they cannot afford to post bail.

Image of Koch Industries Mark Holden

Read more about Mark Holden here.

There is a role for bail in the criminal justice system. We favor a system that bases pretrial detention and bail on risk concerns, not one’s income. People who are accused of a crime but pose no threat to public safety should be free until their case is heard without having to post bail for their freedom. Consistent with smart-on-crime and soft-on-taxpayer reforms, individuals accused of a crime should not be required to provide bail unless a risk assessment determines they are a flight risk or a threat to public safety. This would not only serve justice but also save taxpayers’ money. A recent study by the Buckeye Institute found that in Ohio alone, proposed reforms to the bail system could save approximately $67 million in jail costs.

Several companies and organizations have recognized the urgent need to end the senseless warehousing of individuals in our local jails, where seven in 10 have not been convicted of any crime.

For example, both Google and Facebook announced that they would ban ads from for-profit bail bond agencies. Koch encourages all forms of free speech, including advertising, but is committed to working with anyone in good faith who shares a common cause to improve people’s lives. In another positive move, the National Conference of Chief Justices passed a resolution in January that seeks to develop recommendations, tools and policies that promote equal protection under the law regardless of economic situation.

As with any effort that seeks to unrig a broken system, there are entrenched interests that feel threatened by change. This is only natural, and it is what all advocates of reform must face with courage and, I hope, a spirit of cooperation with these interests to truly reform the system.

From pretrial to grand jury to indigent defense to sentencing to prison reform and reentry reform, Koch has long advocated for critical changes to the U.S. criminal justice system that will enhance public safety, help people improve their lives and reenergize their communities. People in our least-advantaged communities have long been disproportionately affected by policies that perpetuate a two-tiered system. It is a system in which those who have the means to afford bail are able to avoid time in jail while awaiting their constitutionally guaranteed right to a trial, and those who, despite being innocent in the eyes of the law, must bide their time in jails that have been described as "intolerable," "horrendous," and worse. This has persisted for too long, and it is plainly an injustice to all.

This is not a partisan issue. As Senators Kamala Harris (D-California) and Rand Paul (R-Kentucky) wrote in a New York Times op-ed last year, pre-trial jail time is "far too often determined by wealth or social connections." The time for posturing and protecting special interests is over. We owe it to the thousands of men and women in jails across the country without convictions. We owe it the thousands of children and spouses deprived of time with their loved ones simply because they don't have enough money. And we owe it to ourselves to uphold the true spirit of the Constitution, to ensure that everyone receives equal protection under the law. These changes might not happen overnight, but by working together, we can achieve better outcomes for all.