Sunday Commentary: Why Bail Reform Is One of the Most Critical Issues Facing the Criminal Justice System

Bail

On November 19, the Vanguard Court Watch’s annual dinner and fundraiser will feature San Francisco Public Defender Jeff Adachi, among others, speaking about the need for bail reform.  While bail reform hardly seems like the most poignant topic on the surface, it actually represents one of the grossest injustices in the criminal justice system.

Part of the problem in our system is that we are increasingly incarcerating people and holding them in detention when they have not been convicted of a crime.  For the typical person in custody in a county jail, they are often simply awaiting their day in court.

Except in capital cases, most of those people who can afford to put down the money for their bail bond are free to be out of custody and make appearances as required.

As Jeff Adachi told the Vanguard previously, this is a class-based system rather than a system that holds people in custody when they pose a greater risk to the population.

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.”

One of Mr. Adachi’s deputy public defenders, Chesa Boudin, noted that clients who are incarcerated are at a disadvantage in the courtroom. Pretrial detention hampers defendants’ ability to participate in their own defense, and it can even result in worse outcomes at trial. “Put simply, being unable to afford bail makes you more likely to be found guilty — even if you’re innocent,” Ms. Boudin said. “Worse still, pretrial incarceration can motivate someone to plead guilty solely to lessen their jail time.”

Two recent articles present research to suggest that this is not just a matter of fairness.  The Atlantic last week published an article that cited an internal audit from the Department of Justice’s Inspector General Michael Horowitz.

The Atlantic reported, “Offenders who don’t remain in jail before their trials often end up receiving lesser sentences or no prison time, sometimes even avoiding a conviction altogether. The report estimates that tens of millions of dollars would be saved by incarcerating fewer low-level offenders.”

Facing the possibility of spending months in custody prior to trial make it more likely for the defendant to plead guilty, even if that means higher fines or years of probation.

The article cites Megan Stevenson, an economist and professor at the University of Pennsylvania Law School, who stated, “A lot of people don’t think about or don’t realize some of the collateral consequences of pleading guilty in terms of the effect it has on your criminal record, the ability to find jobs, to get into schools, to get a variety of public benefits.”

Professor Stevenson’s study concludes that “those who can’t afford bail are 13 percent more likely to be convicted and will receive incarceration sentences that are on average five months longer.”

She told the Atlantic: “We’ve already known that people that are detained are more likely to be found guilty, and are more likely to have unfavorable case outcomes. But those who are detained are systematically different from those who are released. They’re generally facing more serious charges, have long criminal histories, and may be less able to afford a good lawyer. I identified a natural experiment in Philadelphia that enabled me to say definitively that pretrial detention has this causal effect on case outcomes. It causes people to be more likely to plead guilty, and to plead guilty to worse terms.

One mechanism, she said, was “the immediacy of being physically free.”  But there are other impacts: “If you lose your job, if you lose your apartment, if you need to find somebody else to take care of your kids, at that point the cost of future incarceration might not be so high after you’ve already been locked up for a week. It reduces incentive to fight against a plea deal that involves another six months of jail. Basically, if you’re out and you’re at home the idea of pleading guilty to six months of jail might sound a lot worse than if you’re already in jail, and you’ve already lost your job, and you’ve already lost your apartment.”

She also indicated that she didn’t “expect the detention rates to be so high for what seemed to me to be pretty trivial crimes like shoplifting. That was surprising for me. I also didn’t expect the detention rates to be so high for people that have relatively low amounts of bail set.”

She also found that “these effects are greater for people that have very limited prior experience with the criminal justice system—people who are first- or second-time arrestees. That may be because being in jail is particularly scary or intimidating, or they’re less savvy.”

Professor Stevenson just released a study two weeks ago with Paul Heaton of the RAND Corporation and Sandra Mayson of Penn Law School which found, “In misdemeanor cases, pretrial detention poses a particular problem because it may induce otherwise innocent defendants to plead guilty in order to exit jail, potentially creating widespread error in case adjudication.”

The Inspector General suggested, “Traditional pretrial diversion and diversion-based court programs (sometimes collectively referred to herein as ‘diversion programs’) are alternatives to prosecution or incarceration that enable certain low-level and non-violent offenders to be diverted from traditional criminal justice proceedings, with the result being that the offender may be sentenced to a lesser or no term of incarceration, or even no conviction at all.”

Bail reform advocates suggest we do away with the bail system entirely.  If people really represent a threat to society, we can simply hold them in custody, regardless of their ability to pay.  For those who demonstrate they cannot regularly make court appearances, we can do the same.

For all others, we can have a system that either allows them out on OR (own recognizance) – as we already have a system of supervised OR, which is like being on probation or parole, or we can further confine people with ankle-monitoring or place them on house arrest.

All of these would be based on the level of threat the individuals pose and their ability to make their court appearances.  All of these would allow them to work, pay their rent, and not be unduly pressured to take a plea deal that could harm their prospects down the line.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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24 Comments

  1. PhillipColeman

    “Bail advocates suggest we do away with the bail system entirely.  If people really represent a threat to society, we can simply hold them in custody, regardless of their ability to pay.  For those who demonstrate they cannot regularly make court appearances, we can do the same.”

    “Bail advocates” should probably rename themselves “Abolish Bail Advocates” for clarification. Were we to do this, I think we’d require a Constitutional Amendment. A Constitutional Law expert could speak on this. If so, that would take years, and require a political will that I simply don’t see despite its 500-year stain on the American justice system.

    Setting an agreed standard of “public threat” would be a protracted process, but it is possible.

    Refusal to comply with required court appearances is a major problem already–even with our bail system–so that reform is already overdue. A suggestion offered here is a companion to the “3-strikes law.” You can be assured that the repeat offenders can count to three, a “3rd Striker” is already a part of the repeat offender vocabulary and they are very aware of the legal consequences of a third conviction. Apply the same count for “Failure to appear.”

     

    1. hpierce

      Actually Phil, I’d go with a two-strike (maybe even 1) failure to appear concept, unless a “strike” is averted by the equivalent of a valid “doctor’s note” (or other demonstrable valid reason)… failure to appear due to a heart attack requiring hospitalization, to me, would not count as a ‘strike’.

  2. Delia .

    There is also the issue of children. If you are thrown in jail and can’t afford bail, your children could be taken away. You have no legal recourse. The cops and the DA don’t care that they are destroying a family, and permanently scarring innocent children. All they care about is convictions. They truly don’t care if you’re innocent.

    1. hpierce

      I think you hit on an important part of possible reform… if a suspect is poor, and caring for a family (unless, of course, the charge is due to neglect or abuse of the family), I’d consider that a ‘double mitigation’ of “flight risk”… if I were a judge (and truly have absolutely no wish to do that), I’d take those things (caretaker, and/or without significant resources) into account in considering level of bail, or perhaps (depending on the charges), ROR.

      Bail, theoretically, is for the defendant to have enough ‘skin in the game’ to stick around and face the ‘charges’.

      Yet there are some, who have the resources, claiming they are a caretaker, who do flee the jurisdiction of the Court. Not simple.

        1. PhillipColeman

          Money is a factor and it, and the constraint to flee rises somewhat with an increased bail. But your point is well taken that if a defendant is consciously motivated to skip because of a gloomy forecast of acquittal–and the penalty is severe–money be dammed. I’m outta here, what have I got to lose anyway?

  3. Sam

    If you are poor, the taxpayers are already paying Mr. Adchi $294,000 pre year and Mrs. Boudin $137,000 per year to defend you free of charge. Now we should also not have them post any bail?

    A quick unscientific look at the arrest records from Woodland and about half of the time the arrests were for or included a bench warrant, probation violation and/or suspended drivers license. Even with the current bail system people do not seem to be following the directions of the court. I don’t think that will get better if we lower or terminate bail.

     

    1. David Greenwald

      “If you are poor, the taxpayers are already paying Mr. Adchi $294,000 pre year and Mrs. Boudin $137,000 per year to defend you free of charge. Now we should also not have them post any bail?”

      I’m not following the common thread here?

      1. Sam

        My point is that we already provide people that are unable to afford an attorney with expensive legal representation to give them more equal standing in court. (I think this should not change)I think that lowering bail for that same class of people is going to give them even less of an inventive to follow the courts instructions, like showing up for their trial. From looking through the arrest records people are already not showing up for their court dates, not going to their probation officers and driving after the court takes away their license. So I don’t agree that poor defendants should simply be let out of jail after being arrested for a crime with no incentive to show up for their court date.

         

        1. David Greenwald

          Thanks for explaining that. I want to make it clear that the bail reform position is not to simply let defendants out of jail with no incentive to show up – instead, I have offered four alternative pre-trial arrangements that go from OR to Supervised OR (meaning they check in with probation) to House Arrest/ Ankle Monitoring to No bail. If they don’t show up for their court date they risk anything from house arrest to no bail.

        2. Sam

          OR and no bail are the same thing. If people convicted of a crime are not showing up to probation meetings and people out on bail are not showing up to voyrt, why do you think they will show up on OR and no bail?

  4. Tia Will

    Sam

    If you are poor, the taxpayers are already paying Mr. Adchi $294,000 pre year and Mrs. Boudin $137,000 per year to defend you free of charge. Now we should also not have them post any bail?”

    That is correct. I believe that one of the basic principles of our society is equality under the law. And yet the statistics regarding disparate conviction rates and duration of sentences clearly demonstrates that we have not achieved that standard with the current system.

     

  5. Miwok

    Funny how Mr Greenwald rails against the system, then asks someone from a nearby county, a “Sanctuary” city to boot, to speak at his function. Looking for a State Appointment to the Big Time?

    It is also strange how the SFPD has been criticized for their racism and other “crimes against criminal-Americans” and Mr Adchi/Adachi presides over that. Or is the shining leader of the Anti-Bail movement?

    Since the statistics provide many excuses why people cannot pay bail, it does not provide the explanation they are committing crimes when they are arrested. This coincides with the State of CA letting poor Criminal-Americans out of Prison, because their rights to commit crimes have obviously been violated.

    When the Vanguard argues about Criminal-Americans not being given their due in court, I can understand corruption, as I worked for UCD for over 26 years. They make Davis honchos look like pikers, and Davis PD is complicit is covering up the theft and corruption when it spills over to the City.

    If the Vanguard argued for the emphasis of the Justice System on poor instead of all Criminals, I might understand the article. What I understand, is that the Vanguard wants to let all the Criminal-Americans out of prison, regardless of income. Does anyone at the Vanguard appreciate anyone that doesn’t break the law?

    1. Davis Progressive

      i think you’re misreading the point.  reforming the bail system means that all pre-trial inmates are treated equally regardless of income, that doesn’t mean they are all allowed out of custody, it just means money isn’t the basis to decide who stays in custody and who is released.

  6. Tia Will

    Miwok

    Since the statistics provide many excuses why people cannot pay bail, it does not provide the explanation they are committing crimes when they are arrested.”

    Two points.

    1. There is a fine line between “excuses” and “reasons”. You appear to be omitting the possibility that some of these excuses are completely valid.

    2. They may or may not be committing crimes when they are arrested. You appear to be forgetting that in our justice system we are considered innocent until proven guilty. Everyone who is under arrest and has not yet gone to trial is not defined as a criminal. The police are not infallible. Being arrested does not make one a criminal, only a conviction does that.

  7. quielo

    Two points,

    1: people of a right to bail “Excessive bail shall not be required,”and what the right amount is I’m not sure. I am sure it is often not $0
    2: Adachi is not a disinterested observer, He has built his career and a pretty sweet comp package on the criminal defense and would presumably like to have a bigger empire. Saying to defendants there is no down side to fighting every case as long as possible and, in many cases, putting off the day of reckoning, at no cost to you, is an attractive proposition. Of course as the office expands to accommodate all these new attorneys the chief will make a case for a raise based on expanded responsibilities.  
    3: His proposal will dramatically increase the number of trials and motions. This will cost a lot of money. How will it be paid for? I know we have a someone who likes to say we should only discuss principles so if, as a society, we decide that offering more trials is more important that paying people to preform nebulous functions like legislation liaison than I’m OK with it but the money will come from somewhere.

    1. Davis Progressive

      adachi is not disinterested but for reasons other than what you offer.  he is paid on salary, so his income is not dependant on this.  however, he is representing the best interests of his clients who are detrimentally impacted by the current system.  not sure i agree that this will dramatically increase the number of trials – after all, time in custody considerations are just one factor in plea agreements, the other is exposure and that weighs heavily on whether you risk trial.  that won’t change.

      1. quielo

        Yes he is salaried but compensation of a department head is based, to some extent, on the size of the department and the scope of responsibilities. Of course empire building is sometimes based on other factors than money.

         
        I agree with Adachi that “It creates a disincentive for cases to be fully investigated and litigated.”. The converse is that allowing everyone to fully “Investigate and Litigate” will drive a lot more of both. Since I do not believe there is a lot of spare capacity in the criminal justice system unless we significantly change the process we will need a lot more money. Where will it come from?

        1. Davis Progressive

          but adachi was also on the forefront of prop 47 support and prop 47 greatly reduced the number of felonies and increased misdemeanors.  that undercuts your argument about his drivers.

        2. quielo

          Maybe he is looking to replace the business. His motives aside this will drive additional spend. If we indeed had speedy trials it would not be such a problem

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