The US Department of Justice filed an amicus brief in a Georgia case last week, challenging the use of financial bail. The DOJ back in February of 2015 argued “that bail practices that incarcerate indigent individuals before trial solely because of their inability to pay for their release violates the Fourteenth Amendment.”
The current case goes further, arguing that the use of a bail schedule by the city of Calhoun, Georgia, which sets bail amounts based on the nature of offenses, violates the 14th Amendment due process and equal protection rights of those arrested.
The DOJ addresses one key question: “Whether a bail practice that results in the incarceration of indigent individuals without meaningful consideration of their ability to pay and alternative methods of assuring their appearance at trial violates the Fourteenth Amendment.”
Here the DOJ argues that fixed bails schedules “that allow for the pretrial release of only those who can pay, without accounting for ability to pay and alternative methods of assuring future appearance, do not provide for such individualized determinations, and therefore unlawfully discriminate based on indigence.”
Under such bail schemes, “arrestees who can afford to pay the fixed bail amount are promptly released whenever they are able to access sufficient funds for payment, even if they are likely to miss their assigned court date or pose a danger to others. Conversely, the use of such schedules effectively denies pretrial release to those who cannot afford to pay the fixed bail amount, even if they pose no flight risk, and even if alternative methods of assuring appearance (such as an unsecured bond or supervised release) could be imposed.”
The DOJ argues, “Such individuals are unnecessarily kept in jail until their court appearance often for even minor offenses, such as a traffic or ordinance violation, including violations that are not punishable by incarceration.”
This creates harm for people who are presumed innocent under the law, making it more difficult to mount an effective defense and more likely for them to cop a plea, and producing strains on local budgets.
Last week, new research from the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School found that, for those defendants who cannot make bail, the repercussions do not end with pretrial confinements.
Two new studies from the Center found that defendants subject to pretrial detention “are more likely to be convicted and less likely to receive favorable plea terms than similarly situated defendants who make bail.” Moreover, “those who experienced pretrial detention committed more crimes after their release than similarly situated individuals who made bail, calling into question the public safety benefits of widespread detention through money bail, particularly in low-level cases.”
In a press release, the Center “recommends that jurisdictions consider reducing reliance on money bail in misdemeanors and other non-violent, low-level offenses. Such strategies advance a variety of bipartisan community goals, including reducing costly incarceration, while actually improving public safety and reducing crime overall.”
The first of the studies, conducted by Quattrone Center academic director Paul Heaton and Center fellows Sandra Mayson and Megan Stevenson and forthcoming in the Stanford Law Review, examines the consequences of misdemeanor pretrial detention in Harris County, Texas — the third largest county in the United States — using data from 380,689 misdemeanor cases filed between 2008 and 2013. The second study, by Megan Stevenson, analyzes pretrial detention in Philadelphia for all criminal cases which had a bail hearing between September 13, 2006, and February 18, 2013.
Paul Heaton is a leading economist looking at the criminal justice system, specializing in data-driven studies of crime, courts and legal policy. Sandra Mayson is a lawyer and criminal law scholar, and Stevenson is an economist studying crime and the criminal justice system.
“Often the poor can’t afford even relatively low amounts of money bail, and the effects of even a few days of jail can be severe, such as the loss of a job or housing,” said Ms. Stevenson.
The study found that, in Harris County, roughly 50 percent of misdemeanor defendants do not make bail, and in Philadelphia that number is around 25 percent. Even at bail bond amounts of $50, almost half of Philadelphia defendants are detained for more than three days.
“Defendants in these cases have an incentive to plead quickly to secure release, which may contribute to widespread errors in case adjudication, and have ripple effects as individuals come into further contact with the criminal justice system down the line,” said Mr. Heaton.
These misdemeanor convictions can result in jail time, heavy fines, invasive probation requirements, and collateral consequences that include deportation, loss of child custody, ineligibility for public services, and barriers to finding employment and housing.
In Harris County, the study found that misdemeanor defendants incarcerated pretrial were 25 percent more likely to plead guilty and 43 percent more likely to be sentenced to prison, and they received sentences more than double the length of those received by similarly situated defendants who were not incarcerated pretrial.
In Philadelphia, the study found that felony and misdemeanor defendants detained pretrial were 13 percent more likely to be convicted than similarly situated defendants who were not detained. In addition, detained defendants received sentences five months longer and owed an average of $128 more in court fees.
“Our research suggests that the bail hearing is a critical stage in the criminal process,” said Ms. Mayson, “which would mean that defendants have a Sixth Amendment right to representation.” Currently, many jurisdictions, including Philadelphia and Harris County, do not provide representation for poor defendants at the bail hearings. Bail hearings often last only a minute or two and occur over video conference.
In addition to affecting the outcome of the immediate case, in Harris County pretrial detention had a criminogenic impact – “it appeared to cause an increase in crime after those detained had served their sentences.” After carefully accounting for the possible fact that those detained pretrial are more criminally involved than those who post bail, the research showed that detainees committed, on average, 22 percent more misdemeanors and 33 percent more felonies than similarly situated releasees within 18 months after the bail hearing.
Reducing reliance on cash bail, as the Center recommends, would have had a significant financial and public safety impact on the county. If Harris County had eliminated cash bail for individuals whose bonds were set at $500 during the study’s time period (2008–2013), the county would have reduced incarceration by 400,000 inmate days and saved $20 million in jail supervision costs, and could have reduced crime in Harris County by 1,600 felonies and 2,400 misdemeanors.
On November 19, the Vanguard Court Watch will have its annual dinner and fundraiser. This year the topic will be bail reform and the keynote speaker will be San Francisco Public Defender Jeff Adachi, a leader in the bail reform movement. Tickets will go on sale on September 6, 2016 and proceeds will fund Court Watch operations.
—David M. Greenwald reporting
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