September 30, 2017

ABA backs bills to limit use of money bail for pretrial release

The ABA expressed its support Aug. 25 for two bills seeking to discourage the use of payment of money bail as a condition of pretrial release in criminal cases.

In letters sent to the judiciary committees in the House and Senate, ABA Governmental Affairs Director Thomas M. Susman explained that over 450,000 Americans remain in jail while awaiting their trials simply because they cannot afford bail. This, he said, costs state and local governments billions of dollars each year that could be spent on other benefits for residents.

“Financial conditions should be imposed only when no other less restrictive conditions of release will reasonably ensure the defendant’s appearance in court,” Susman wrote, emphasizing that the ABA, which has long supported actions to limit the use of cash bail, reinforced that position at the Annual Meeting in August. The ABA House of Delegates adopted policy favoring the release of defendants on their own recognizance or on unsecure bond and urging that judicial officers be prohibited from imposing conditions of release that would lead to detention of a defendant based simply on inability to pay bail. Susman highlighted that detaining defendants for not paying “interferes with their ability to defend themselves and, in many instances, deprives their families of support.”

The new policy also opposes using “bail schedules” that consider only the nature of the charged offense. Instead, the ABA supports procedures that require courts to make bail and release determinations based on individualized, evidence-based assessments using objective verifiable release criteria that do not have a discriminatory or disparate impact based on race, ethnicity, religion, socio-economic status, disability, sexual orientation, or gender identification.

S. 1593, introduced by Sens. Rand Paul (R-Ky.) and Kamala Harris (D-Calif.), would authorize a $10 million Justice Department program for three years to provide grants directly to the states to fund bail reform programs tailored to individual state’s specific needs. The states would be required to ensure that their reforms are not discriminatory, to report on their progress, and to institute systems for better data collection.

The House bill, H.R. 1437 – introduced by Rep. Ted Lieu (D-Calf.) and more than 20 cosponsors − would prohibit the Byrne Justice Assistance Grant Program from awarding grants to states that use payment of money as a condition of pretrial release. In addition, the bill, known as the “No Money Bail Act of 2017,” would prohibit the use of bail money for pretrial release in federal criminal cases.