As the North Dakota Department of Corrections and Rehabilitation moves forward with its pretrial detention reform work, the ACLU of North Dakota is encouraged by the possibilities for continued criminal justice reform in the state – particularly in regards to cash bail.
The DOCR selected the South Central, East Central and North Central judicial districts as pilot sites that will look at a variety of pretrial issues, including bail practices. The sites Data from this program will be used to explore how the state can create a new system and could bring forth recommendations for rules or legislation during the 2021 legislative session.
Ending cash bail and eliminating wealth-based pretrial detention is a nationwide priority for the American Civil Liberties Union’s Campaign for Smart Justice. Nationwide, close to half a million people are in jail today awaiting trial, many of them incarcerated only because they are too poor to afford cash bail. In 2015, 83 percent of people held in North Dakota’s jails were being held pretrial and had not been convicted of a crime.
“It’s time to end North Dakota’s current system of cash bail that lets the size of your wallet determine whether you are granted freedom or stay locked up,” said Dane DeKrey, ACLU of North Dakota advocacy director. “Whether or not you are in jail should not depend on your ability to pay for your freedom. Yet that’s the way our current cash bail system works. This system of wealth-based incarceration keeps people who have not been convicted of a crime in jail for weeks, months and even years. People lose their families, jobs and homes as they wait for their case to move through the system. Money should never decide a person’s freedom, yet that’s exactly what happens every day in courts across the state.”
The original purpose of bail was to serve as an incentive to return to court when a person is arrested, released and their case proceeds. However, the current cash bail system hardly resembles its original intent. Rather it has mutated into a way to separate people who have money from those who don’t. People with money can almost always buy their way to pretrial freedom, regardless of the charges against them. Yet people without access to cash too often end up in jail simply because they cannot afford bail, or alternatively they must take out loans from bail companies that charge exorbitant fees.
Numerous courts have found current bail practices to be unconstitutional and violate due process rights and equal protection under the Fourteenth Amendment, the prohibition against excessive bail in the Eighth Amendment, and the right to a speedy trial guaranteed by the Sixth Amendment.
Ending cash bail is also a main criminal justice reform strategy noted in the ACLU of North Dakota’s Blueprint for Smart Justice report. The report outlines ways North Dakota could reduce its prison population by 2025 and save the state millions of dollars.
“Far too often, people who cannot afford their bail will end up in jail for weeks or months,” the report states. “When this happens, the criminal justice system leaves them with a difficult choice: Take a plea deal or fight behind bars. … After even a short stay in jail, taking a plea deal sounds less burdensome than losing everything, which is likely why evidence shows that pretrial detention significantly increases a defendant’s risk of conviction.”
About the ACLU of North Dakota
The American Civil Liberties Union of North Dakota is a non-partisan, nonprofit organization dedicated to the preservation and enhancement of civil liberties and civil rights. The ACLU of North Dakota is part of a three-state chapter that also includes South Dakota and Wyoming. The team in North Dakota is supported by staff in those states.
The ACLU believes freedoms of press, speech, assembly, and religion, and the rights to due process, equal protection and privacy, are fundamental to a free people. In addition, the ACLU seeks to advance constitutional protections for groups traditionally denied their rights, including people of color, women, and the LGBTQ communities. The ACLU of North Dakota carries out its work through selective litigation, lobbying at the state and local level, and through public education and awareness of what the Bill of Rights means for the people of North Dakota.
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