Bail costs too much for both the accused and society. But there’s a technological fix

I have long been involved in pro bono efforts relative to the criminal justice system. The recent discord regarding the bail system in Kansas City and elsewhere stimulated me to research this particular issue, including discussions with a judge and a person who heads a prison reform nonprofit.

One goal for pretrial management of those accused of crimes is to minimize disruption to their lives, and also the lives of their families, fellow employees and employers. According to the U.S. Bureau of Justice Statistics, 32% of defendants charged with a felony are not convicted. For those people in particular, we don’t want to add injury to insult.

Second, we want to assure they appear for trial.

Third, we want to avoid additional crimes prior to trial.

A fourth goal is to minimize the cost of pretrial incarceration and the process of administering justice. In mid-2019, nearly 500,000 people were estimated to be in jail pending trial in the United States. That’s a lot of disrupted lives and a lot of cost.

Bail addresses the first, second and fourth goals. Denying suspects bail addresses the third.

Bail critics expose bail as unfair, and it is undeniably harder for less-affluent people to post bail. The cost of bail (the median level is $10,0003) contributes to the large number of people in U.S. jails.

In cities where bail requirements have been loosened, crime has increased, causing understandable backlash against bail liberalization. It is important to find a better solution, one that can address all the above goals.

Electronic monitoring addresses the need, providing more freedom to accused individuals, while letting us track their locations. State-of-the-art monitors are harder to remove and can send alerts if tampering occurs.

Thus, if tracked individuals miss court dates, we can find, and deal with them easily. Knowing they are tracked, they would be less likely to miss court dates. We could also stop them from flying out of the country.

If they commit a crime, police could prove they were at the scene and apprehend them more easily. It costs government less to pay for monitoring than to incarcerate those awaiting trial.

These types of programs have existed for accused individuals and parolees in all states, being used, for example, to release inmates from prisons taxed by COVID-19. We should expand these programs, leveraging ongoing technological improvements (GPS monitoring can make it easy for defendants and officers to reach one another) while adhering to the following principles:

▪ Safeguard privacy. It is scary to envision government tracking all residents or those who have protested. Strict protocols must assure that electronic monitoring is limited to those who would otherwise be duly incarcerated.

▪ Ensure timely justice. With electronic monitoring, fewer people would languish in jail, so courtroom delays might draw less attention.

Likewise, monitoring should not be allowed to inure us to societal problems that increase crime.

Critics say people wearing monitors have suffered job loss and embarrassment. Those repercussions pale compared to being in jail, and can be reduced with improved technology and procedures.

Critics have also spotlighted how some jurisdictions have hampered necessary or harmless movement, such as visiting a stricken relative at an emergency room or stopping in the street to chat with a neighbor. Best practices have evolved to address these issues.

A key criticism has been that the cost of monitoring has been charged to the defendant. As noted above, the savings from reduced incarceration should enable the government to pay — which also makes sense, as defendants are presumed innocent.

When reviewing any study about particular practices, it is important to consider the study’s size and methodology. Furthermore, old studies based on inferior technology and outdated practices lose relevance when considering new, improved technologies and practices. The issues surrounding use of electronic monitoring for parole seem to be similar, albeit not identical, to using electronic monitoring for people awaiting trial.

Checks and balances are critical to society. With appropriate protocols and supervision, we should be able to improve substantially by replacing bail with alternative monitoring.