The Criminal Bail Reform Movement’s Next Steps

Posted on Thursday, August 10th, 2017 at 9:14 am    

By Anna Olevsky, Law Student Clerk

On July 20th, 2017, Senators Kamala Harris (CA-D) and Rand Paul (KY-R) announced that they had teamed up to write a bipartisan bill on bail reform. Bail systems across the country have been subjects of contention for many years. Although the U.S. Supreme Court has stated that the Constitution prohibits “punishing a person for his poverty,” many U.S. states currently have policies in place which keep those who cannot afford bail in jail for extended periods of time before their trial. Oftentimes, the amount of bail money required greatly exceeds the means of an average American citizen – even for petty crimes, like shoplifting. Those who are wealthy, however, are able to avoid pretrial incarceration, even if they pose greater flight risks for more severe crimes. Additionally, Senators Harris and Rand highlight some of the other consequences of our current bail system in their article, such as the disparate impact on black and Latino defendants, many of whom are required to pay significantly larger sums for bail. In order to solve this problem, the senators have introduced the Pretrial Integrity and Safety Act.  Under the bill, each state would receive a grant from the Department of Justice, in order to “carry out the most effective policies, tailored for its needs.” In return, the states will have to provide better data collection on the pretrial process, as well as progress reports, in order to ensure that the practices are not discriminatory in nature.

These senators are not the only legislators who have attempted to overhaul the bail system. In Maryland, the Court of Appeals determined that it is unconstitutional to hold a defendant in jail for no reason other than an inability to afford bail. While this does not eliminate the use of money bail, it does make it necessary to first take into account the individual flight risk. In Texas, the State Supreme Court determined that money bail should only be used in the “narrowest of cases” for people charged with misdemeanors. Instead, judges can order supervision tools, such as GPS monitoring or drug testing. In the California State Legislature, Assembly Bill 42 has been proposed, which would end the use of money bail schedules, instead requiring the use of pretrial services agencies. This has been met with opposition from Republican lawmakers, however, who have asserted that the state would have to spend hundreds of millions of dollars to reimburse counties for establishing these new pretrial services. In addition to Republican lawmakers, several interest groups, such as bail bond agents, have been staunchly opposed to the measures passing across the country. In New Jersey, where voters supported a measure which nearly eliminated cash bail, bail bondsmen are planning to sue Gov. Chris Christie.

California is in particular need of a solution, as the state’s median bail rate is five time higher than that of the rest of the country. The Human Rights Watch has analyzed California data and has found many troubling statistics. Over 63 percent of prisoners in county jails have not been sentenced, but are serving time because they cannot afford to pay bail. Racial disparities are common as well – for example, black people are nine times as likely to suffer pretrial incarceration than white people in San Francisco. This standard of pretrial incarceration is costing the Californian taxpayer, as well. According to Human Rights Watch analysis from 2014-2015, California spent $37.5 million in six counties jailing people whose cases were dismissed or never filed. Of the almost 1.5 million felony arrests in California from 2011-2015, 459,847 were not guilty of a crime. Currently, most defendants rely on bail bondsmen to be released. The system allows defendants to pay off their bail in one of three ways: They can pay the full amount, 10 percent of the actual bail amount, or they can schedule a payment plan in order to get out of detention. The bail bond payment is not refundable, however – even if the case is dismissed.  These numbers make a compelling argument for why bail reform must be pushed forward.

While some lawmakers may be troubled by the initial cost of implementing pretrial service agencies, the eventual savings should lead to long-term benefits. By incorporating a model for pretrial risk assessment, we can better identify those who pose an actual flight risk, as well as a danger to others, and allow the rest to go free. GPS monitoring could also be incorporated as an alternative measure, in order to allow those who pose no real threat to continue caring for their families and paying their bills. Senator Harris and Senator Rand have come up with a promising alternative to the controversial bail system. The Pretrial Safety and Integrity Act allows each state to tailor its system as it sees fit, whether that be by implementing a risk assessment model, or limiting pretrial incarceration to felons. This bill is the right step in the direction of eliminating discriminatory practices and unconstitutionally expensive bail.

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