February 18, 2020 Appellate Issues | Winter 2020

Stop Assuming Money Bail is an Effective Tool for Criminal Justice

By Jennifer Williams

When is the last time you thought about the current bail system or, more specifically, considered whether money bail is necessary to assure court appearances by persons accused of committing crimes? For attendees at the AJEI Summit in Washington, D.C., if they had not thought about money bail before, they were sure to question the barbaric, archaic, and potentially unconstitutional bail system in America after listening to the panel discussion, “The Culture of Bail in America: The Real Cost of Pretrial Detention,moderated by Elizabeth Ryan, a Staff Attorney of the Tennessee Supreme Court.

Panelists Mary McCord, visiting professor at Georgetown Law School and a senior litigator with the Institute for Constitutional Advocacy and Protection, and Honorable Colleen O’Toole, visiting judge in Abu Dhabi and former public defender and appellate judge, offered compelling reasons why America’s current bail system should be everyone’s concern.

Nationally, the money bail system predominates as the tool governing pretrial release. This means that in most states, a person arrested (presumed innocent but not released on personal recognizance) remains incarcerated unless he or she can pay a set dollar amount. The dollar amount is supposed to depend upon an individualized assessment of many factors, including the arrestee’s criminal history, ability to pay, danger to the public, and likelihood to appear in court. However, as McCord and Judge O’Toole explained, many of today’s bail systems operate akin to an assembly line and lack any semblance of individualization. Decisions concerning pretrial release happen in mere minutes, without a thorough review of the facts and context, and fail to serve as a mechanism assuring pretrial release. In fact, many jurisdictions use a bail schedule, which dictates different bail amounts depending on the offense. Other systems might also use risk assessment tools that generically gauge information recorded on paper.

Although one might believe this type of system is acceptable, McCord and Judge O’Toole proved otherwise. Imagine you live in a county that jails people charged with misdemeanor offenses and you have been arrested for a misdemeanor and jailed. When you arrive for your initial appearance, you sit among thirty other defendants waiting for a three-minute appearance before the judge. When the judge addressees your case, the prosecutor recommends your bail be set according to the schedule. You say nothing because you do not know what to say. Seconds later the judge sets your bail $500 cash or surety (the amount listed on the schedule). Although you are employed, you do not have $500 or the local bondsman’s 20% surety because you live paycheck to paycheck. Your family also does not have $100 cash to pay the bondsman, so you remain incarcerated. As McCord explained, you lose your job, your home, and are more likely to plead guilty to get out of jail. This remains true even if the judge reconsiders bail (after a true individualized assessment) because getting before a judge generally takes four to five weeks.  

Notably, McCord was a federal prosecutor for 20 years in the District of Columbia.  She remarked that prosecutors across the nation agree (and have signed amicus briefs reflecting such consensus) that under the current bail system, far too many people arrested for minor crimes remain incarcerated solely because they are unable to post bail. She and Judge O’Toole highlighted that there is no data to support perpetuating the current system and, in fact, data shows overwhelming negative outcomes for detained arrestees eligible for release—lost jobs, lost homes, increased recidivism, increased costs on taxpayers, etc. Judge O’Toole further explained that we have created a system that is the complete antithesis of what was intended, a system that bears no causal nexus between money bail and guaranteed appearance. Simply put, we have created a system that is ineffective at best, and a harm to public safety at worst. 

So why does the system continue to exist? According to McCord, there exists no ill will by the players; rather, the system is what it is because systems are entrenched, bail bondsmen advocacy is active across the nation, and people do not know the origin of bail. Before the 1800s, bail did not mean money bail. Rather, bail meant a personal pledge by one person guaranteeing that the arrestee would appear for court. No money was paid upfront, just a personal assurance that money would be paid if the arrestee did not appear. Then in the late 1800s, money started to be used as bail, but this was only because it was hard to find human sureties and, without sureties, more people remained detained. As McCord explained, the original money bail system worked effectively and allowed more people the opportunity to be released. Unfortunately, the system has since morphed into de facto pretrial detention. 

But the pendulum is swinging and bail reform is occurring across the nation. McCord chronicled one particularly profound case from Texas: O’Donnel v. Harris County, Texas, 251 F. Supp. 3d 1052 (S.D. Tex. 2017). In that case, the court recognized, “Whether by legislative enactment, judicial rule making, or court order, there is a clear and growing movement against using secured money bail to achieve a misdemeanor arrestee’s continued detention.” Id. at 1084. In examining Harris County’s system, the court answered two questions: “Can a jurisdiction impose secured money bail on misdemeanor arrestees who cannot pay, who would otherwise be released, effectively ordering their pretrial detention? If so, what do due process and equal protection require for that to be lawful?” Id. at 1059. The court concluded that “under federal and state law, secured money bail may serve to detain indigent misdemeanor arrestees only in the narrowest of cases, and only when, in those causes, due process safeguards the rights of the indigent accused.” Id.

So what can you do? McCord and Judge O’Toole offered guidance. If you are a judge, you can effect change by ensuring pretrial detention occurs only when an individualized assessment warrants continued incarceration. If you are an appellate judge, look at the record, and if it is silent as to an individualized assessment, weigh in on the seriousness of the issue and drive change. If you are a defense attorney, take deliberate steps at the outset to ensure procedural due process for each arrestee. If you are prosecutor, recognize your discretion to refrain from asking for money bail unless the particular facts necessitate pretrial detention. Finally, no matter your role in the justice system, take the time to learn about the culture of bail in America.  

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Jennifer Williams

Jennifer Williams is a wife, mother, daughter, sister, and friend. She is also the law clerk for the Honorable Justice DeVaney of the South Dakota Supreme Court and has had the honor of working as a career law clerk for several now-retired justices. Jennifer is in her final year as a Commissioner for the South Dakota State Bar Association, is a co-chair on the State Bar Strategic Plan Committee, and is a member of the State Bar Continuing Legal Education Committee. She is also an employment skills coach for Love INC of the Black Hills and a community collaborator with the John T. Vucurevich Foundation’s Prosperity Initiative.