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Chairman Nadler Statement for Subcommittee Hearing on "The Administration of Bail by State and Federal Courts: A Call for Reform"

Washington, November 14, 2019

Washington, D.C. –Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY) delivered the following opening statement for the Subcommittee on Crime, Terrorism, and Homeland Security hearing on "The Administration of Bail by State and Federal Courts: A Call for Reform":

"I thank the Subcommittee Chair, Representative Karen Bass, for conducting this hearing on the important topic of bail reform.

"On any given day, six out of ten people in federal and state jails, accounting for nearly half a million people, are incarcerated awaiting trial. These are members of our community who are still innocent in the eyes of the law and may never be found guilty, yet they may spend months behind bars before even having the opportunity to contest the charges against them.

"The modern bail system has become unmoored from its original intent, which was only to ensure defendants return to court.

"The current system detains many people based solely on their inability to afford money bail, which results in serious problems for defendants of limited means. It also imperils the effective operation of the adversarial system of justice, and it may even endanger the community.

"The nearly half million people incarcerated pretrial are at a disadvantage from the outset. Access to counsel while incarcerated pretrial may be hampered, undermining preparation of a defense and accumulation of evidence. These challenges, in turn, may unjustly encourage defendants to take plea bargains for crimes that they never committed.

"Thus, defendants who cannot afford bail receive harsher case outcomes, on average, than those who are able to pay. They are three to four times more likely to receive a jail or prison sentence, and their sentences are likely to be two to three times longer.

"In addition, opportunities for pretrial diversion programs, which address underlying factors that contribute to criminal behavior, may be unavailable for those who are incarcerated pretrial.

"Money bail systems challenge the very legitimacy of our criminal justice system and its presumption of innocence before trial.A number of studies on money bail show that it is not even effective at mitigating the risk of nonappearance, while resulting in significant negative outcomes. Now is the time investigate, in earnest, alternatives that promote rehabilitation and safety.

"Unnecessary pretrial detention has real consequences for families and communities. Being detained pretrial, even for a short period, can be daunting. For example, while in jail pretrial, defendants risk losing their jobs and homes, which can have a cascading effect on families.

"People who have lost their jobs due to being detained lose income and their ability to maintain their families, placing them at greater risk of engaging in crime. In fact, studies have shown that defendants detained just three days in jail are more likely to be arrested on new charges. Unfortunately, the current money-based system promotes release of some of the most dangerous defendants—because they can afford to post their bond—with little to no meaningful supervision.

"And keeping presumptively innocent people in jail is expensive. Local communities spend, by some estimates, $14 billion every year to detain people who have not been convicted of any charges.It would be better to redirect these funds instead to crime prevention, rehabilitation of offenders, and assisting victims.

"In the federal context, the reforms of the past have been proven to be insufficient in balancing a defendant’s liberty interest and ensuring that the community remains safe.

"At the time of the passage of the Bail Reform Act of 1984, 81% of defendants were released pretrial. Since enactment of the 1984 Act, release rates have steeply declined, falling to 66% by 1996, 37% by 2006, and 25% in 2018. Even release rates of low risk defendants have decreased. Surely community safety does not justify this trend. A number of states have implemented reforms of their bail systems in recent years, including most recently New York, and the time has come for Congress to examine how federal courts administer pretrial bail as well.

"Conservatively, it costs upwards of $85 dollars a day to incarcerate a person pretrial. Pretrial supervision, coupled with measures such as court date reminder programs, costs just a fraction of that. Congress should investigate the effectiveness of these practices and other potential reforms.

"As we consider alternatives to money bail, however, we must determine whether certain alternatives—such as overreliance on risk assessment tools—may generate additional negative consequences, such as compounding the racial bias that already exists in other aspects of our criminal justice system.

"While developing effective and just alternatives to current money bail practices will undoubtedly require a financial commitment, the cost of inaction to defendants, their families, and to the larger community is much higher. The negative impact on everyone of even a few days spent in jail pretrial may greatly outweigh the perceived benefit.

"I look forward to the discussion today of these very important issues, and I again thank Subcommittee Chair Bass for conducting this hearing. I yield back the balance of my time."

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