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Judicial system needs more sentencing, treatment options by Lowell Grisham | January 14, 2020 at 1:00 a.m.

I know a handful of Fayetteville police officers, and every one I have met is smart, professional and committed. I have known a few local judges and prosecutors, and each one I have dealt with has been conscientious and fair. I can't speak to other jurisdictions, but I believe Fayetteville has a strong judicial network.

I don't like it that the county participates in the 287(g) program. It is a federal job to enforce a dysfunctional immigration system. But that's another column.

Our justice system bears the burden of trying to solve problems that we might have addressed more proactively. As a society, we don't do a very good job identifying and helping people who have mental health issues, especially if they are poor. We've failed to invest in things like universal prekindergarten, affordable quality child care and lower student-teacher ratios that we know prevent school failures and drop-outs. We have more demand than capacity for addiction services. We don't have a network of local, restorative juvenile rehabilitation centers.

Not counting the human suffering involved, we know it costs less money to prevent potential future anti-social activity than it costs to prosecute and punish. But we don't make those common-sense investments. Why? Because we don't like to raise taxes to pay for these services. But we do pay.

With a proposal on the table in Washington County for a $38 million county jail expansion, the Quorum Court has initiated a needed comprehensive study of the judicial system, and a working group of citizens and stakeholders are trying to address jail overcrowding issues.

A group of private citizens has brought the Bail Project here, and they are beginning to make a dent in the number of people who remain jailed before their trials because they don't have enough money to post bail. The Bail Project underwrites bail and volunteers make sure its clients show up for court, offering transportation when needed. It's a great program. If you would like to train as a volunteer, email Mac Mayfield, [email protected]

Even a few days in jail can cause serious health and emotional deterioration. Jails concentrate together violent people as well as people suffering from mental illness, substance abuse and infectious diseases. Awaiting trial in jail can threaten a person's job, housing, family relationships, health and access to healthcare. Persons detained for their entire pretrial are four times more likely to be sentenced to jail and three times more likely to be sentenced to prison than defendants who were released. Their sentences are also much longer. Pretrial detainees are more likely to plead guilty even when innocent, leaving some crimes actually unsolved.

Judges find themselves in a difficult position. They are supposed to grant the accused a speedy trial, but the system is overloaded. The Eighth Amendment prohibits "excessive bail" and "excessive fines." The Supreme Court has ruled (U.S. v Salerno) that "liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." Arkansas Rule 9.2(a) instructs that a "judicial officer shall set money bail only after he determines that no other conditions will reasonably ensure the appearance of the defendant in court."

It's easy if a judge believes it is likely that a defendant will commit a serious crime if released. Pretrial incarceration is altogether appropriate.

Otherwise, to release a defendant, the judge must decide whether the accused is likely to fail to appear for future court hearings. There are a few creative supervision or treatment options, but if there is a risk of failure to appear, most often a judge will impose a bond or money bail.

Someone wealthy like me can probably pay the whole bond and have it returned in full when I show up for court. But a person with fewer financial resources is in a different situation. They might use a bail bond agent. The agent will post 10% of the total bond amount and charge a nonrefundable fee for the service. The bond agent will usually require collateral for the full amount of the bail.

That's impossible for many people. They don't have money to pay a bond agent. They don't have collateral for full bail, which can run into thousands of dollars. We end up jailing people because they are poor.

That's where the Bond Project might help. Maybe the Quorum Court study can find better ways to overcome the communication and transportation issues that affect court appearance.

The U.S. has the highest percentage of population in jail of any country in the world. We need to address that broadly.

Commentary on 01/14/2020

Print Headline: Jail fails


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