Bail. Bail is something many of us are only familiar with via TV crime dramas. Our lack of understanding of what bail really means makes bail reform even more difficult for us to wrap our minds around. What is the issue with bail, why does it need reform? Some people currently in jail because they cannot come up with $100 to make bail? Wait, seriously, not having $100 is keeping people stuck in jail?? You may be thinking, “how can someone not find just $100??” – and therein lies crux of a pretty terrible problem. Let’s take a look.
What is bail? How did it begin?
Believe it or not, the bail system has officially been around since the 15th century, starting in England during the Middle Ages. In 1677, the English parliament established magistrates would set terms for bail by passing the Habeas Corpus Act. A few years later, the English Bill of Rights put restrictions against “excessive bail”. The United States brought this practice over and implemented it through the Sixth Amendment to the Constitution. It deemed all people under arrest must “be informed of the nature and cause of the accusation” they face and be allowed to demand bail if they are accused of a bailable offense. What is a bailable offense you may ask? Under the Judiciary Act of 1789, all noncapital (crimes which do not carry the death penalty as a possibility) were bailable offenses. Further, this act stated for capital offenses bail was at the judge’s discretion but also placed limits on judges’ powers in setting bail. For the rest of the 18th and 19th centuries, bail laws pretty much remained the same. In fact, it was not until the 20th century until any significant bail system reform passed.
The first major reform, the 1966 Bail Reform Act, was designed to allow defendants to be released with as small a financial burden as possible stating “the purpose of this act is to ensure that all persons, regardless of their financial status, shall not needlessly be detained pending their charges…when detention serves neither the ends of justice nor the public interest.” In other words, we shouldn’t be putting people in jail just for being poor. At that time, many, many poor people were spending months in jail only to have the charges dropped later. The bail system had become something biased against the poor which filled jails with people who should be out on bail. Unfortunately, there followed some high profile cases of crimes being committed by people out on bail. The second reform, the Bail Reform Act of 1984, fine tuned the bail system by closing a risky loophole which had allowed dangerous suspects to receive bail as long as they didn’t appear to be a “flight risk”. After this new law was enacted, defendants were to be held in jail until trial if they were judged dangerous to the community and/or a flight risk. This act also expanded the types of crimes not eligible for bail: repeat offenders, serious crimes, potentially dangerous people and anyone who might be a flight risk.
How does bail work?
After someone is arrested, they are processed, have a background check run and wait in a cell with other recently booked people. For less serious crimes, people may be allowed to post bail immediately after being booked. If someone is suspected of a more serious crime, they have to wait (usually less than 48 hours) for a bail hearing where a judge will determine if they are eligible for bail and the amount of bail needed. States have different rules for the amount of bail required based on the crime, but most states have a guide and then leave it up to a judge’s discretion. Judges usually look at the following factors when determining bail: the defendant’s criminal record (if any), their history of showing up for past court appearances, ties to the community, whether they are a danger to others and any other concerns that may be raised by the defendant’s attorney.
Here is a great infographic for how the system works by prisonpolicy.org
There are five different types of bail:
- Cash Bail: pay the full amount of bail in cash.
- Surety Bond: The most common bail we think of, and why we usually say “out on bond”. This involves someone (usually a friend or relative of the accused) contacting a bail agent, also known as a bail bondsman. Bail agents are backed by special insurance companies called a “surety company” and they pledge to pay the full value of the bond if the accused doesn’t appear in court. Bail agents generally require 10% of the bail amount paid up front by the defendant, and this 10% is non-fundable. If needed, bail agents might attempt to involve family members and friends to motivate defendants to show up in court. If the defendant does not show up in court, the bail agents can hire a bounty hunter to track them down. If the defendant doesn’t appear, the bail agent loses the full amount of the bail that was posted. Commercial bail bonding is illegal in Illinois, Oregon, Wisconsin, and Kentucky.
- Property bond: This option is seen a lot on TV and is where people get a lien on their property to put up as a bond for bail. If they do not show up, the court can foreclose on the property to recover the forfeited bail.
- Release on Own Personal Recognizance: For non-violent or minor crimes, judges can choose to release someone on “their own recognizance”. This means the person is responsible for showing up for their court date and they do not have to pay any money bail.
- Release on Citation: This occurs when officers do not book a suspect; instead, they issue a citation saying that the defendant must appear in court at a certain date so the system can move on to pursue more high risk, serious offenders.
What is the Current Bail Reform Movement About?
The first two major changes to the bail system were covered above; the current third generation of bail reform started in 2010. The first major step in the current movement was the second National Symposium on Pretrial Justice hosted by the Office of Justice Programs and the Pretrial Justice Institute in 2011. This reform is rooted in the idea that no person should be jailed simply due to their inability to pay for a bond, similar to the first bail system reform movement. Evidence now clearly shows money bail perpetuates an endless cycle of poverty and recidivism/jail time – especially for minority and poor people. Jailing people needlessly also comes at a high financial cost, which society must bear one way or another.
This article from PrisonLegalNews.org states that between 60 and 70 percent of the nearly 750,000 inmates confined in jails around the U.S. have not been convicted. As many as nine in ten of those people remain in jail because they cannot afford to post bond. It is estimated taxpayers pay around $9 billion each year to keep these people incarcerated. Remember, if you have not been convicted, you are legally still innocent; so these are, by definition, innocent people we’re keeping in jail. Studies and investigations document over 800 fatalities in the past year within the nation’s city and local lockups. These types of facilities usually hold inmates awaiting trial or serving shorter sentences for misdemeanor offenses. Not only are high bail amounts putting people in danger they would not otherwise be in by keeping them in crowded jails, but they heavily disadvantage the poor leading to reinforcement of broader racial inequities within the judicial system.
Inequality within our justice system is not something new, especially when it comes to race and sentencing. But many people believe money bail in particular violates the constitutional guarantee of equal access to justice, regardless of an individual’s wealth. Let me explain this access to justice argument in more detail. It is well established that there are disproportionately higher numbers of lower income, minority people charged with minor crimes than more affluent, white people, making such people statistically more likely to be arrested in the first place. Most jurisdictions only use the guidelines outlined earlier to assign the bail amount and do not take into account defendant’s risk profile or ability to pay bail. People are then forced to remain in jail because they cannot pay bail miss out on their professional and personal obligations – including forfeiting paychecks, possibly losing their job and problems with supporting their family. These consequences of being detained can effectively rob them of any real chance to mount a good defense, even if they are innocent of the crime they are charged with. If they accept a plea bargain to get out of jail sooner and try to salvage their lives, that conviction goes on their record, setting them up for future failure, and perpetuating this vicious cycle.
Here is another great infographic from prisonpolicy.org covering the demographics of this group.
The Bills.
Jurisdictions all over the US are working towards solving this problem. Many jurisdictions are attempting to convert to individualized assessments which consider a defendant’s personal, financial and criminal background to inform their bail decisions. Whether it’s through legislation or lawsuits like the these in New Jersey, Texas, and California, states are slowly passing new laws or working to codify legal rights to ensure people charged with misdemeanors will not be kept in jail simply because they cannot afford their bail.
Here is a map of various “pretrial justice” bills across the states over the last few years.
Of note is current Senate bill S 1593, the Pretrial Integrity and Safety Act of 2017. This bill would provide grants to States and Native American tribes if they reform their criminal justice system and encourage replacing the use of payment of secured money bail as a condition of pretrial release for criminal cases, and also funds data collection efforts to study the impact of these policies. Essentially, the bill incentivizes states to implement “individualized, pretrial assessments with risk-based decision making”. When speaking about the bill, which she cosponsored with Rand Paul, Kamala Harris said,
“Our justice system was designed with a promise: to treat all people equally, yet more than 450,000 Americans sit in jail today awaiting trial and many of them cannot afford ‘money bail.’ In our country, whether you stay in jail or not is wholly determined by whether you’re wealthy or not — and that’s wrong.”
Also introduced this year is Representative Ted Lieu’s House bill HR 1437, The No More Money Bail Act of 2017, which would give states three years to replace money bail with risk-assessment alternatives or face the loss of federal funds for common justice programs and initiatives.
There are also several states which have begun implementing these smarter pretrial practices. Kentucky enacted their bail reform bill in 2011; and since then, Pretrial Services data has shown a 10% decrease in the number of defendants arrested and a 5% increase in the overall release rate. Pretrial jail populations have decreased by 279 people, while appearance and public safety rates have remained consistent. Kentucky also banned for-profit money bail 40 years ago. Colorado passed a bill in 2013 to put forth “best practices in bond setting”.
Maryland introduced a bill this year aimed at “requiring a judicial officer to make a specified determination regarding release or detention of a defendant before trial”. The bill stated that a judicial officer may not set bail for any of the following reasons: solely for the purpose of detaining the defendant, to punish the defendant or to placate public opinion. Maryland also proposed another bill intended to prevent defendants from being held in jail pretrial simply because they cannot afford bail. (Neither of these bills passed.)
Connecticut had several different bills aimed at implementing bail reform through legislative action in the 2017 session. CT SB653 wanted to give nonviolent offenders, who do not have the means to post bail, an alternative pretrial release system. CT SB1166 was going to create a more rational criminal justice system by ensuring if a person is charged with a misdemeanor, they are not detained pretrial for a period longer than the term of imprisonment they would serve if convicted of the offense. CT HB7044, the only bill of the three which passed, does four things: bars judges from setting cash-only bails, restricts judges from setting bail for misdemeanors in most circumstances but they can retain the discretion to impose bail for defendants with a record of not appearing in court or who are judged to be flight risks, and, finally, accelerates bail redetermination hearings in misdemeanor cases. The bill also authorizes a study sought by the bail industry on the practicality of imposing a surcharge on bond agents’ clients to help indigent defendants.
Finally, in November of 2016, New Mexico voters approved a constitutional amendment that limits bail to cases where the prosecutor “provides clear and convincing evidence that the defendant will not come back to court, and is a danger to the community” while also stating “a defendant cannot be denied bail because of a financial inability to post a bond.”
My Conclusion.
This is a pretty open and shut issue in my opinion. The current bail regime is only hurting our economy and our people. I do not want my tax money spent on detaining people that have jobs, families and other obligations for crimes like having a gram of marijuana. It is time for national reform. Not only because we are wasting tax money that could be better used to substantially better many people’s lives, but because we are dooming vulnerable people to a horrible, often inescapable, cycle that is the antithesis of what America should stand for.
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