Of all of the problems that face our current criminal justice system, one may have to go down the list to think about bail reform – however, it is both a bigger problem and a bigger inequity than one might think.
A large percentage of the population that is held in jails currently are there on pre-trial custody situations. These are people that have not been convicted of any crime. Many will ultimately be released for time-served or probation.
As the Sacramento Bee in an editorial asked in 2011, “Who, really, needs to be detained before trial, and who should be allowed to remain in the community while his or her case proceeds? Counties need to take a hard look at the risks arrestees pose to public safety while they await trial.”
The Bee added, “In Sacramento County, 31 percent of the pretrial population has had no previous arrests, or only one arrest. Forty-three percent have had no prior convictions. Sixty-three percent were arrested for nonviolent property, drug or alcohol crimes. Most are local people and are not a flight risk.”
The Contra Costa Times reported last year that roughly 65-70 percent of those in county jail custody are awaiting trial and that number is up to 85 in the Bay Area.
One of the big problems with bail, as San Francisco Public Defender Jeff Adachi told the Vanguard last November, is that it is class-based. Those who can afford to put up the bail get released from jail. The poor have to be incarcerated.
“It’s unfair because people who are released from jail are simply those who have money. You can get out on bail if you’re charged with murder if you have the money,” Jeff Adachi said. “And yet if you’re charged with criminal trespass, and you don’t have $500 to post bail, you’re going to be in jail.”
“The presumption of innocence in this country is meaningless because for most of our clients who are poor people, they are incarcerated pending their trials,” he said. “It places much more pressure on them for innocent people to plead guilty. It creates a disincentive for cases to be fully investigated and litigated.”
As Maya Scenwar wrote in the NY Times this past weekend, “Mayor Bill de Blasio of New York unveiled a plan to decrease the population of the Rikers Island jail complex by reducing the backlog of cases in state courts. About 85 percent of those at Rikers haven’t been convicted of any offense; they’re just awaiting trial, sometimes for as long as hundreds of days.”
However, she argued that, while this is a positive step, his plan “ignores a deeper question: Why are so many people — particularly poor people of color — in jail awaiting trial in the first place?”
For the most part, “it is because they cannot afford bail.” “79 percent of pretrial detainees were sent to Rikers because they couldn’t post bail right away.”
She writes, “This is a national problem. Across the United States, most of the people incarcerated in local jails have not been convicted of a crime but are awaiting trial. And most of those are waiting in jail not because of any specific risk they have been deemed to pose, but because they can’t pay their bail.
“In other words, we are locking people up for being poor. This is unjust. We should abolish monetary bail outright.”
There some that argue that bail is necessary to prevent flight before trial, “but there is no good basis for that assumption. For one thing, people considered to pose an unacceptable risk of flight (or violence) are not granted bail in the first place. (Though the procedures for determining who poses a risk themselves ought to be viewed with skepticism, especially since conceptions of risk are often shaped, tacitly or otherwise, by racist assumptions.)”
She also cites Washington, D.C., which makes virtually no use of bail where “the vast majority of arrestees who are released pretrial do return to court, and rates of additional crime before trial are low.”
There are fairness issues at play here too. “Not only do those who are in jail before trial suffer the trauma of confinement, but in comparison with their bailed-out counterparts, they are also more likely to be convicted at trial. As documented in a 2010 Human Rights Watch report, the legal system is substantially tougher to navigate from behind bars. People in jail face more pressure to accept plea bargains — often, ones that aren’t to their advantage — than do those confronting their charges from home.”
There are also inequities. For instance, studies “have shown that black defendants are assigned higher bail amounts than their white counterparts. This discrepancy is compounded by the fact that black people disproportionately live in poverty and thus unduly face challenges in paying bail.”
The Bee in 2011 found, “In the pool of 1,294 local pretrial detainees in Sacramento County, the 437 arrested in violent, sex or weapons- related cases are rightly held in jail without bond. But that leaves 812 people who a judge has said could be released if they paid bail, but remain in custody because they can’t pay. Bail in Sacramento County is extraordinarily high – only 9 percent of the 812 have had bail set under $20,000.”
As the Bee put it: “The county needs to screen every person booked into county jail, and release low-risk individuals, with conditions such as home detention or regular phone checks to make sure they attend court hearings.”
San Francisco last year implemented new bail amounts. The San Francisco Examiner reported last summer, “The rationale behind the changes, according to court officials, was driven by concern for the public’s safety as well as legal requirements dictating an annual review of bail and a desire to put The City on the same page with other neighboring jurisdictions.”
“The vast majority of the offenses listed on this sheet are violent crimes,” said Ann Donlan, a spokeswoman for the court. “The purpose of bail is twofold — to protect the public’s safety and to ensure that the defendant returns to court. The court’s concerns and responsibilities are different than Mr. Adachi’s concerns and responsibilities, and that is the nature of the judicial system.”
But Jeff Adachi argued, “The nature of the crime alone in and of itself doesn’t justify an increase in bail. The bails for violent crime are already sky-high, so doubling or tripling the bail amount isn’t justified. Why did they believe it was necessary to increase bail from last year? We’re not talking about an adjustment for inflation. The bail for battery on a police officer, which amounts to unlawfully touching an officer, quadrupled from $5,000 to $20,000. Why? What’s the justification for that?”
Jeff Adachi believes we need to move away from money bail and implement the types of reforms that New Jersey and Maryland have instituted.
He said, in San Francisco, they are litigating every case where their client might be eligible for bail “because we feel that under the law, clients are entitled to a full bail hearing.” He added, “Judges have to understand what presumption of innocence means.”
The presumption of innocence means that people are innocent until proven guilty. There are a percentage of individuals who probably do pose a risk of flight or danger to the community. Those individuals can reasonably be confined without bail pending trial.
But for the remainder, why not simply lease them either on OR (own recognizance) or some form of monitored version of OR? That would eliminate the inequities of bail while at the same time freeing up the jails to house only those who have been convicted of crimes or represent a true threat to the community – regardless of their access to money.
—David M. Greenwald reporting