Real Facts, Real Costs

Tuesday’s Baltimore Sun opinion section featured one of its periodic
pieces that flows from Doug Colbert, a practicing defense attorney who
also teaches law at the University of Maryland.  Written by students in
his Access to Justice clinic, the “High Cost of Pretrial Jailing”
article sounded Colbert’s persistent theme:  people are locked up
waiting for trial when the money spent on their incarceration could
better be spent on alternatives.  

Colbert is particularly interested in having all persons represented by
lawyers during the entire bail process, believing this would make a
huge difference.  While he (like his students in their article) point
out the cost of incarceration, I have yet to see his estimate for the
cost of providing immediate free lawyers to all arrested offenders 24
hours a day  throughout the state.  It would be, needless to say,
enormous.  And whenever citizens are presented with the “cost” to
incarcerate someone, they should remember it usually includes include a
fixed overhead that would be present whether or not a particular
individual is locked up.  

So I find incredible the claim by Colbert’s students that letting 300
persons out of pretrial detention per month would save taxpayers $10
million a year.   Not only does such an estimate include fixed costs
that would not be saved, it omits the costs associated with increased
supervision and representation.  And it utterly ignores the number of
people who commit more crimes while waiting for trial, and the costs
for that.    

If I thought that universal legal representation at bail proceedings
would actually make a difference, I might be more persuaded that it was
a good thing to do, assuming we knew the real costs.  I happen to
believe that our current bail system discriminates against the poor and
could be improved.

But there isn’t enough time at the bail stage to do the “investigation”
necessary to confirm much information about arrestees.  The bail
process moves quickly to minimize the time that most people are
detained.  For the minority who remain in jail after bail review, a
government agency already exists to help them: the Public Defender’s
Office, whose attorneys in the district offices are under-whelmed with
work.  If they spent a little of their excess time on bail issues after
bail review, perhaps they could make a difference.

Citizens—and journalists--presented with the Colbert’s bail reform
proposals should read him very carefully.  As I pointed out in Lots of
Money, Little Justice Colbert, as an advocate, is not above omitting
the other side of the story.  

And listen carefully to his students, who use Colbert’s style of
attaching a sympathetic description to each offender and minimizing key
facts: “The defendant, a veteran of Iraq, never failed to appear for
court and had only one previous conviction for using marijuana, which
resulted in his current probation.  But he was still
incarcerated…simply because he could not afford his $1,000 bail.”

Naturally, we aren’t told any of the facts of the new charge for
marijuana possession, which judges find important.   But a key fact,
carefully minimized by the students, is that the offender is already under supervision on the street for the same charge.   Judges might resaonably feel that further supervision on the street is not appropriate.  

Then
there’s the 63-year-old “husband” jailed for nine days because he
“missed court and could not make the $100 bail.” (I guess being a
husband was the only positive thing they could come up with in his
case.)  But this guy—whose criminal record is tellingly omitted by the
students—was only locked up because he failed to appear in court,
wasting court and police time.  Colbert never includes these costs in
his calculations.   

I appreciate Colbert’s advocacy and zeal.  I am more sympathetic to
reforming the bail system than he thinks.  But when it comes to
throwing public money at “good ideas” to solve problems I have become
very conservative, having spent two decades observing waste in the
criminal justice system.  Let’s get all the real facts and all the real
costs, and then we can make the best decisions.

***

Speaking of costs, another article in Tuesday’s Sun was a follow-up to
the hubbub over the 100% salary pension for part-time legislators in
Baltimore County (“Balto. County councilman acts to limit pensions.”) 
I am glad to see there’s a hubbub and that someone is trying to do
something about it.  

But there’s another waste of money that’s been quietly going on for
decades, and that’s the resources poured into the district criminal
courts.  The fact that the Public Defender’s office is under-occupied
in the district court is just one of the symptoms. I will write more
extensively on this after Thanksgiving.