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Bail reform

The notable thing about the criminal justice system is that it always seems to need reform. Five years ago Ohio saw the passage of HB 86, which made no fewer than 156 modifications to the criminal code, every one of which was designed to send fewer people prison, and to have those who went do less time.  No, the Ohio legislature hadn't gone soft-hearted:  the goal was to reduce the prison population and thereby save money.  It looked like a bill to reform Federal sentencing was in the works - not so much anymore - which advocates noted would save $722 million over ten years.  (Of course, $72 million in the Federal budget is like the change you find under the couch cushions.)

Cuyahoga County has been no stranger to reform.  There were efforts to reform the assigned counsel system, the grand jury system, and the process of transferring felony cases more quickly from the municipal courts. 

But for right now, the Next Big Thing here is bail reform.  

A couple months back, I got a call from a reporter for cleveland.com, asking me if I'd had any clients who'd had to sit in jail because they couldn't pay the bond.  That's sort of like asking a criminal lawyer if he's ever handled any drug cases.  Yes, I've had people sitting in jail on a fifth degree felony because nobody they knew could come up with the two hundred bucks necessary to pay a bondsman.  And so has every other criminal lawyer.

No one will be surprised to know that Cuyahoga County is not exactly the spearpoint of the bail reform movement.  New Jersey and Washington, D.C. have implemented it, and their experiences have driven an assortment of groups to lobby for reform here.

So a month ago, I was one of about 60 people who trudged into the assembly room at the Justice Center to watch a power-point given by Administrative Judge John Russo, explaining how he intended to pursue this.  He didn't commit to reforming the system, but maintained, reasonably, that more data was needed.  Four committees would be established to gather that data, study how it would be implemented, and calculate what the cost would be.  I left the meeting vaguely reminded of a British politician's observation that a committee is a cul-de-sac down which ideas are lured and then quietly strangled, a point reinforced by the subsequent announcement that it would take several months to even get the committees up and running.

I've talked to several people who are pushing bail reform, and their constant refrain echoes Russo's:  we need to look at the data.  Their point, though, is that the data is already there:  all we need to do is look at the results in New Jersey and Washington and several other places that have reformed their bail systems.  Yes, I agreed:  all we need to do is get the data.

But on further thought, that reminded me of what someone else said:  David Halberstram.  He wrote a book about the Vietnam War in 1972, The Best and the Brightest.  The book's central figure was Robert McNamara, the defense secretary who served under Kennedy and Johnson.  McNamara was the wunderkind who turned General Motors around in the 50's, and brought him with him many of the people who'd helped him there; they were promptly labeled the Whiz Kids.  "You can't beat brains," Kennedy said.  Those brains led America to what to that time was its biggest foreign policy debacle.

How did they do it?  By looking at the data.  That's where the term "body count" got its start:  McNamara's people would measure the success of the war by how many North Vietnamese and Viet Cong we killed.

As Halberstram points out, the problem with relying on data is that you start with the belief that all relevant factors can be quantified, and you eventually adopt the corollary that if something can't be quantified, it's not relevant.  Body counts can be quantified; support among the South Vietnamese people can't.  So you emphasize the former and ignore the latter.

That applies here, too.  We can measure how many crimes are committed by people who are released on bail who otherwise wouldn't be.  We can measure how much the jail population is reduced, saving money.

What we can't measure is the value of a mother returned to her family, of a man going back to his job instead of losing it because he's sitting in jail.

Data has a place in this discussion.  But only a place.  We're talking about people's lives, too, however difficult that may be to measure.

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