Topic: Bail

Those of us on different sides of the political spectrum can disagree on plenty of issues, but we can all agree that more must be done to uphold equal access to justice as enshrined in the U.S. Constitution.

Justice for all is a core value of the John D. and Catherine T. MacArthur Foundation’s Safety + Justice Challenge. And it’s achievable. We should start with the pretrial system, moving from the current approach largely based on ability to pay to a system focused on public safety and due process.

Having more money in a free market economic system should mean you can buy a bigger television or a nicer house, but it shouldn’t grant you better access to justice. A pretrial system based on wealth combines with other disparities—such as the ability to obtain qualified defense counsel—to undermine equal access to justice.

In Tarrant County, which is the area around Fort Worth in Texas, for example, some 9,000 low risk-assessed defendants languished in jail for a year or more before trial because they couldn’t afford bail set at $2,000. That is to say, they couldn’t find $200 to pay a bail bondsman.

In practice, pretrial liberty is not the norm, despite both the Constitution and Supreme Court precedent demanding that pretrial detention be a “carefully limited exception.” Rural areas, not urbanized ones, have been driving much of this growth in pretrial incarceration.

This could be because of fewer judges and lawyers to process cases in small towns, economic incentives to build unnecessary jail capacity, and the opioid epidemic. Possible solutions include reducing jailable offenses, expanding police diversion, using validated risk-assessments to identify those who can be safely released following arrest, and revising state bail laws.

I recently discussed these topics in a conversation that covered bail reform and other pretrial justice issues in the context of COVID-19, as well as in the aftermath of the death of George Floyd. The panel, which was part of the 2020 Smart on Crime Innovations conference, featured diverse perspectives, including those of Cherise Fanno Burdeen of the Pretrial Justice Institute, Kristie Puckett-Williams of the North Carolina ACLU, and Terry Schuster of the Pew Charitable Trusts.

These discussions come at a highly polarized time, when some question whether local and state governments can afford reforms. Having worked on criminal justice policy in Texas since 2005—when reform was not even on the radar screen—and spearheaded the launch of Right on Crime in 2010, I know the importance of sustainable models, such as Texas’ landmark 2007 justice reinvestment package. This approach redirected some of the funds that would have been used to build new prisons to strengthening alternatives such as drug courts and mental health treatment, along with programming behind bars and increasing the number of halfway house beds. From 2007 to today, the state’s incarceration rate has fallen from 641 to 423 per 100,000 people. Most importantly, the crime rate has fallen 40 percent, exceeding the national decline.

Texas’ success was widely cited as an impetus for the federal First Step Act in 2018. That in turn created momentum for a second wave of state reforms. North Carolina’s governor just signed the state’s unanimously passed First Step Act, which like the federal version includes dialing back mandatory minimum drug sentences and increasing incentives for time off prison terms through completion of recidivism reduction programs.

Similarly, the Pennsylvania’s State Senate unanimously passed a probation reform bill in July that uses research to inform the length of supervision and allows those with exemplary performance to end supervision early.

And earlier this year, Louisiana passed a raft of reforms, while Tennessee reined in its sweeping drug-free school zone enhancement law, which is projected to save $18 million. Penalties will rightfully remain tougher for those who sell drugs to kids, but no longer will a motorist nearby face many more years in prison for simple drug possession.

While these efforts have bridged the political divide, those of us on the right must continue to emphasize how such reforms adhere to traditional principles of personal responsibility, limited government, and public safety. It is an opportunity to make the public safer while spending less money in the process. It is also a chance to humanely address challenges such as mental illness and addiction that cross all ideological lines.

Ultimately, criminal justice is different from other issues because the debate is not about whether government should be involved. It must be involved—delivering public safety and justice is one of the few core functions of government. Just as pretrial decisions should not vary based on whether one is rich or poor, every community is entitled to a justice system that not only holds individuals accountable, but is also held accountable for its outcomes.

This means applying the same lens of scrutiny to the criminal justice system as every other government system. Examples of this have included legislation requiring data reporting and performance measures. As policymakers face declining revenues and a public health crisis, our efforts to maximize the use of limited resources to create a fairer and more effective justice system have never been more urgent.

—Marc Levin is Chief of Policy and Innovation at Right on Crime, an initiative of the Texas Public Policy Foundation in partnership with the American Conservative Union and Prison Fellowship.

John and Sam were trapped in a vicious cycle of incarceration. When money was scarce, John would make Sam’s court payment instead of his own so she could stay out of jail and care for their child. It was a heartbreaking choice that he made more than once. John has been incarcerated four times for failure to pay fines and costs—each time for 10 days. Even though John and Sam were on the brink of homelessness, the court never asked about their financial ability or offered an alternative to payment.

This is modern day debtors’ prison.

Since 2009, numerous ACLU investigations have revealed that people are being jailed simply for being too poor to pay their fines and fees. These practices damage communities, waste taxpayer dollars, and frequently trap victims in a cycle of incarceration and poverty, while also flagrantly violating the law. Even more troubling, debtors’ prisons create a two-tiered system of justice in which the poor often receive harsher punishments and end up paying more in fees for the same crimes as their wealthy counterparts, simply because they are poor.

In 2013, the ACLU of Ohio issued The Outskirts of Hope, detailing debtors’ prison in Ohio, and created a series of videos to highlight the stories of those affected. We also sent legal demand letters to courts where debtors’ prison occurred and issued an action alert that prompted hundreds of Ohioans to ask the Ohio Supreme Court to take administrative action. As a result of this work, thousands of Ohioans have been released from jail, and over $180,000 has been credited to people for the time they were unconstitutionally jailed.

Shortly after the release of our report, the chief justice of the Ohio Supreme Court met with the ACLU of Ohio and pledged to help stop debtors’ prison practices in Ohio courts. In addition to providing training on how to properly collect fines and costs and to step in where debtors’ prisons occur, the Ohio Supreme Court pledged to create a “bench card.” The bench card is a concise resource for judges that clearly lays out proper and improper methods to collect fines and costs, and even outlines the process for a court to substitute community service for court costs.

Since the bench card’s release, debtors’ prison-related complaints have severely dwindled. The ACLU believes in the simple principle that no one should ever be jailed for being too poor to pay their fines. After years of investigation and advocacy, along with firm guidance from the Ohio Supreme Court, this simple principle is becoming reality, and thousands of Ohioans are able to start new lives.

The Ohio Supreme Court’s bench card was the first of its kind in the country, but after widespread media attention, other jurisdictions have begun to use it as a model to help stop de facto debtors’ prison practices in their own state.

Learn more about the ACLU’s current efforts to end debtors’ prison across the country.

This post originally appeared on the Vera Institute of Justice’s Current Thinking blog.

The Decision Points blog series explores the seven key decision points during the typical criminal case where choices can be made to reduce jail populations.

We expect our criminal justice system to be fair and effective. It’s part of our national DNA to want equal treatment and to get the job done. But in pretrial justice—the time between when a person is arrested and when the charges are resolved—the basic principles we hold dear are too often undermined by our use of cash bail.

The pretrial system should—and could—work like a bicycle, with courts using different gears depending on needs of each specific case. One gear releases low-risk defendants outright, with only a promise that they return to court at a later date. Other gears allow medium-risk defendants to be released under supervision—regular check-ins, drug testing, or electronic monitoring, for example. Yet another gear would keep defendants who pose clear public safety or flight risks in jail before trial without the option of release.

However, the prevalent use of cash bail as a condition of pretrial release derails this system, essentially causing most decisions to result in the detention gear when defendants are not able to pay. Money bail forces the courts to bet on a defendant’s ability to pay and hope for the best. Unfortunately, in too many cases they bet too high on low-risk defendants, and too low on dangerous defendants with means.

As a result, more than six out of ten people in America’s jails are unconvicted and awaiting trial. For the poor people accused of minor offenses, detainment for long periods before trial only worsens their situations, as they lose their jobs, housing, and family ties—connections that reentry programs spend millions trying to restore once they are released. Conversely, almost half of the most dangerous defendants may be released with little or no supervision simply because they can afford cash bail. This is a public safety concern for us all.

Fortunately, there are proven, pragmatic solutions for ensuring that courts choose the pretrial justice gears that make sense. Foremost among them: the practice of setting cash bail for pretrial release should be replaced with (not coupled with) risk-based decision making that has been shown to deliver the kind of fair and effective justice we expect. Examples of jurisdictions that have seen improved outcomes through risk-based pretrial decision-making include Kentucky, the District of Columbia and Mecklenburg County, North Carolina, to name but a few.

Objective, data-based risk assessment helps courts decide whether a defendant can be safely managed in the community while his or her case moves through the system or if a person is too dangerous to be released pretrial. Risk assessment considers not only the individual’s current charge but also a variety of factors—such as criminal history, employment history, and family ties—that rigorous, scientific research has shown to reliably predict pretrial success.

As the 20 jurisdictions participating in the Safety and Justice Challenge—a new initiative to change the way America thinks about and uses jails—strive to ensure that their jails are used appropriately and efficiently, we at the Pretrial Justice Institute believe that they should move to replace cash bail with pretrial risk assessment systems. Risk-based decision-making is fairer, more effective and helps keep cash from undermining the flexibility needed for this important decision point.

Note: This piece also ran on the Huffington Post (“Decision Points: Cash Bail Derails Pretrial Justice and Should Be Replaced With Risk Assessment”)

In California, people who are arrested and incarcerated in jail often face arbitrary bail amounts that can be very different depending on which county you happen to be arrested in. Instead of functioning as a fair process for release, bail often functions as a preventative detention tool, because most people do not have the resources to pay their bail amounts.

This has led to a dramatic increase in the number of people held in California jails who have not been convicted of a crime. Often these are people of color and poor people. But what alternatives to paying the financial conditions of bail exist, and how would arrestees or the public even know about them?

In 2016, Santa Clara County reviewed the information that was available to people newly arrested, and saw only advertisements for commercial bail and private attorneys posted in the county jail near most of the phones available for use. We believe this led people to assume the only way out of jail was to pay a bail agent or possibly plead guilty in order to be released. Staff in our Office of Pretrial Services (PTS)—as well as the offices of Reentry Services, the Public Defender, and the Sheriff—did not believe this was acceptable. With the help of the John D. and Catherine T. McArthur Foundation’s Safety and Justice Challenge, we sought to change this by instituting our No Cost Release Campaign.

We recognize being arrested and going through the booking procedure is highly stressful and traumatic. We also recognize that most people may believe their quickest release option is through the commercial bail industry. Many detainees have jobs, housing, and dependents counting on them and all of these could be jeopardized by spending time in custody.

This campaign seeks to inform those arrested, their families, and the public that there are free alternatives to commercial bail.  Through posters, brochures, a web page, and looped videos in English, Spanish, and Vietnamese, we advertised the free alternatives to commercial bail offered through PTS. The campaign also informs detainees of their right to counsel through the Public Defender’s Office (PDO), and other community-based resources available through the Office of Reentry Services (ORS).

Despite existing since 1969, the options available through PTS were not widely known to the general public. This campaign maximizes access to that information by targeting our local jail system, from the lobbies and booking areas to inmate dormitories. We also dispersed the informational materials to county departments, community partners, stakeholder agencies, and the general public. The video will also be broadcast on local public television channels.

The Sheriff’s Office has further made the materials available for review during the booking process. Clients then become active participants in the release process by completing the voluntary interview with PTS. Eligible defendants can have their case reviewed for potential release on their own recognizance (OR) or supervised own recognizance (SORP) during the pre-arraignment process. These services do not cost the individual, their family, or friends any money. By contrast, paying a commercial bail agent typically involves paying 10 percent of the total bond, which is non-refundable regardless of the disposition of the case or if they show up for all their court appearances.

Pretrial justice reform continues to evolve in Santa Clara County. The Safety and Justice Challenge grant came at an opportune time for rallying support for this campaign following Santa Clara’s published recommendations in the Final Consensus Report on Optimal Pretrial Justice in August of 2016. Stakeholder support has been essential as we have worked toward implementing these recommendations for reform. In recent years, Santa Clara County has initiated many cross-department collaborations creating fertile ground for implementing the No Cost Release Campaign which serves to further these reform efforts.

To measure the campaign’s impact, stakeholders will collect data regarding the use of these jail release alternatives in order to identify gaps in service or opportunities to improve the overall process. We are expecting substantial benefits to individuals, public safety, county resources, and the community. The Sheriff’s Department is collecting data regarding the number of cases released on OR or SORP, on financial bail, and other release types while PTS is reviewing individuals’ awareness of the campaign at the time of booking. For those released on OR/SORP, Pretrial Services will also collect data on the number of individuals showing up for all court appearances and will track the number of individuals not rearrested prior to the completion of their supervision term.

Through this No Cost Release campaign we strive to reduce the number of people in our jails who are simply waiting for their cases to be heard. By informing the public of their rights and options we make our criminal justice system a more just and equitable system for all.