Real Facts, Real Costs

originally published November 24, 2009

Tuesday’s Baltimore Sun opinion section featured one of its periodic pieces that flows from Doug Colbert, a defense attorney and law professor 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 that 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 costs of people who commit more crimes while waiting for trial and those who fail to come to court and have to be arrested again.

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 those 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.

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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 reasonably 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. In fact, his fundamental premise that 300 defendants per month could safely be released to the streets lacks evidence. The last time Colbert got the criminal justice system to investigate his claims only a handful of defendants were uncovered, a fact that was reported to the Criminal Justice Coordinating Council.

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.