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