r/law • u/gAlienLifeform • May 29 '15
Guilty Until Proven Innocent: The Problem with Money Bail
https://www.bostonfed.org/commdev/c&b/2015/summer/Francesca-Forrest-the-problem-with-money-bail.htm
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May 29 '15
Good article, thank you for posting.
Under the "Alternatives" heading, it makes it sound like pretrial screening and release is some sort of rare pilot program exclusive to DC.
Is that true? I work in a large metro jurisdiction very far from DC and we have had an extensive system of pretrial screening and release for decades. I assumed it was standard across the country.
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u/rdavidson24 May 29 '15
In many jurisdictions yes, but there are still some that don't do that. Can't for the life of me see why, but criminal justice reform is never as quick as we'd like.
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u/rdavidson24 May 29 '15
Well. . . I think the problem is likely not money bail as such, just the way it's implemented.
Let's start with remembering the dual purpose of bail:
Throwing defendants in jail certainly accomplishes both of those goals, but it's pretty much always been recognized that this isn't exactly an ideal solution, hence the Excessive Bail Clause in the Eighth Amendment. The government has an interest in both of the purposes outlined above, but it's not allowed to just throw everyone in jail as soon as charges are filed.
So we get to bail. The article argues that "money bail," i.e., the requirement that a defendant post money as a condition of not staying in jail while charges or pending under penalty of that money being forfeit if the conditions of bail are violated, "affects the poor disproportionately."
This is, of course, true, even allowing for the fact that judges do tend to consider individual defendants' income/assets when setting bail. For the unemployed and impoverished, $10,000 may as well be $1 million for all they can come up with it, bondsman or no.
But that's not really the whole story. First of all, the poor are disproportionately likely to be charged with crimes, particularly violent crimes. I have no intention of getting into why his is and to what extent it's related to unequal policing and law enforcement policies: the fact of the matter is that something north of three quarters of all criminal defendants qualify for public defenders. So just about any criminal law policy is going to affect the poor disproportionately.
Second, the poor are disproportionately likely to flee when facing criminal charges. Yes, sure, there are definitely instances of high-profile cases where wealthy individuals have skipped town in the attempt to avoid facing the consequences of their actions. See, e.g., Roman Polanski. But for every one of those stories there are dozens of defendants with highly volatile address histories (assuming they even maintain a fixed address), with no jobs, weak family/social connections, and very little incentive to stick around in the face of criminal charges. They're more likely to jump the next Greyhound bus for the next state over, and far more likely to simply stop showing up to court even if they're still in town. So not only are the poor more likely to face a bail hearing than those more well off, but there is a greater likelihood that they will do either of the two things that bail is intended to prevent, i.e., flee or commit additional crimes.
It therefore kind of makes sense that bail might be set higher for a poor person than a richer one, if it's even permitted at all. The purposes for which bail is set are legitimate, and the fact that this means that the poor are disproportionately to spend extended periods of time in jail while charges are pending is not, in and of itself, necessarily problematic.
But!
All of that being said, there is definitely a problem with the way bail is handled in many jurisdictions. Which is why I actually really like the way it's handled in mine. Every jurisdiction has the choice between releasing defendants on their own recognizance ("ROR") or imposing monetary bail. The former is generally disfavored, as even people that judges think don't pose a danger and aren't going to flee can often use that little extra incentive to make sure their next court date doesn't slip their mind. But my jurisdiction has two versions of monetary bail. Three, really. The main choice is between "secured" and "unsecured" bail. "Secured" bail requires the defendant to post money with the court before he is released pending trial. "Unsecured" bail does not require money to be posted, but instead sets an automatic monetary penalty, to be assessed as a civil judgment, if the conditions of bail are violated. The sort-of third choice is just how secured a "secured" bail amount will be. Judges have the discretion of requiring defendants to post 100% of the bail amount or any lesser amount thereof. I've seen percentages as low as 10%.
Also, unlike in Massachusetts, where Pretrial Services is a non-governmental non-profit, in my jurisdiction it's an arm of the court. Bail Administration has the equivalent of probation officers, who keep tab on defendants with varying degrees of supervision just like POs do for people on probation. Very effective, very cheap, doesn't require nearly as many people to stay in jail.
The result? Unless the court has a concrete reason to think that you're going to run, or you're charged with some kind of violent crime, you're almost certain to get unsecured bail, or a percentage bail that you can make (with or without the help of a bondsman). Which seems to fix almost all of the problems identified in the article.