Our legal system has become desensitized to the suffering that it inflicts on human beings and their bodies. On any given night, approximately 2.2 million people are in jail cells in the United States.1 In total, 6.8 million lives are under the control and supervision of government agents.2 This means that 1 in every 37 people—2.7 percent of the adult population—is physically confined or surveilled and supervised.3 Despite this country having just 5 percent of the global population, we are responsible for 21 percent of the human beings around the world who will go to sleep tonight in government custody.4 And we incarcerate black people at a rate five times that of American whites and six times that of South Africa during the height of apartheid.5
These numbers are not just facts and figures. We tear families apart. We separate mothers from their newborns because they cannot pay $200. We subject human beings to vicious jail conditions, including rampant sexual trauma, physical beatings, coerced labor, staph infection, hepatitis, defective mental healthcare, and solitary confinement that eats away at a person’s appreciation of reality.6 As a legal profession, we have numbed ourselves to the consequences of ordering someone to spend precious moments of her life in a jail cell. And, somewhere along the way, we stopped requiring good reasons.
Our desensitization is not surprising. It is natural to tolerate and rationalize what we see in front of us every day, especially if we are part of it. But people of conscience—particularly those who have the power to make decisions that affect people’s lives—must fight this impulse. Each day, those of us involved in every step of the criminal process must ask ourselves a simple question: Am I sure that putting this human being in a cage, away from her family, is absolutely necessary to create the kind of community that I want to live in?
Although our epidemic of human caging involves many constitutional injustices, one in particular recently has captured the attention of the legal world: the American money bail system. Two-thirds of the jail population is presumptively innocent.7 They are people—fathers, mothers, sons, daughters, husbands, wives—being detained prior to a criminal trial. In many cases, they are caged in jail cells solely because they cannot afford a monetary payment. Each day, in several thousand jailhouses and courtrooms nationwide, we criminalize poverty.
A new movement of lawyers, judges, sheriffs, academics, journalists, and directly impacted people and families have been challenging this system. Civil Rights Corps and other organizations have brought constitutional cases to help our legal system understand a simple truth: that predicating liberty on access to money is bad policy and bad law. These cases seek to restore intelligence, evidence, intellectual rigor, and humanity to determining whether someone is released to her family or detained in a cage. And these cases play another important role: telling the stories of our clients and their families who are directly impacted so we can attack our culture’s normalization of human caging. To change the bail system, we must resensitize our culture and our legal system to its everyday brutality.
Legal Challenges to Money Bail
Civil Rights Corps has brought litigation in jurisdictions nationwide to establish a simple constitutional proposition: The government should not require pretrial detention of a presumptively innocent person unless it is absolutely necessary as a last resort. And, it follows, no human being should lose her liberty because of her poverty. Our cases have repeatedly struck down systems of wealth-based pretrial detention. Because those systems predominate across the country, this litigation is causing a sea change in bail-setting practices.
ODonnell v. Harris County
ODonnell v. Harris County, Texas8 might be the most important case ever decided on money bail. The lawsuit challenges the wealth-based bail system in Harris County, Texas (Houston). Prior to ODonnell, Harris County detained 40 percent of all misdemeanor arrestees—tens of thousands of people every year—solely because they could not make a monetary payment. Maranda Lynn ODonnell, the plaintiff in the case, was one of these arrestees. Arrested for driving without a license, Ms. ODonnell spent two days in jail because she could not pay $2,500. The judge did not consider her ability to pay or nonfinancial alternative conditions of release. The judge did not make a finding that pretrial detention was required as a last resort. Instead, Ms. ODonnell was detained because she could not access $2,500—or even a smaller portion of that amount, which would have been paid to a for-profit bail bond company.
ODonnell was the first major case to put the American money bail system on trial. The federal court’s evidentiary hearing involved eight full days of testimony, including testimony from judges, prosecutors, the sheriff, academics, and other experts. It analyzed hundreds of written exhibits, 2,300 video recordings of bail-setting hearings, statistical analysis, review of virtually every national empirical study available, hundreds of thousands of case records covering years of Harris County data, and sworn declarations from bail experts nationwide. The evidence painted an overwhelming and damning portrait of our country’s senseless embrace of money-based pretrial decision making.
After reviewing all the evidence, Chief Judge Lee Rosenthal of the U.S. District Court for the Southern District of Texas issued a 193-page opinion eviscerating any factual or legal case for using secured money bail. Most simply, Chief Judge Rosenthal’s opinion struck down the common practice of using secured money bail as a way to detain misdemeanor arrestees without making the substantive findings, or observing the procedural protections, required under longstanding federal law before a person can be detained prior to trial. More broadly, her opinion, worth reading in its entirety, discusses the British and American history of secured money bail, including the recent proliferation of secured money bail after relentless lobbying by the multibillion-dollar for-profit commercial bail industry. (Since the Magna Carta, money bail was typically unsecured in England and the United States. Secured money bail exploded with the rise of the for-profit bail industry, which was illegal in England, did not exist in the United States until 1898, and now only exists in America and the Philippines.)
Perhaps most importantly, Chief Judge Rosenthal found as a matter of fact that secured money bail does not improve court appearance or public safety relative to simple alternatives. Secured money bail sets wealthy defendants free, notwithstanding whether the government claims them to be dangerousness, while indigent defendants are jailed. Meanwhile, empirical evidence suggests that detention on money bail for even a short time increases the future risk of nonappearance and makes someone more likely to commit future crimes, even if the detention is for two to three days.9 Even a few days of detention can destabilize lives, causing lost jobs, lost housing or shelter, breaks in medical care, and stressed family relationships.
The negative effects do not stop there. The court found that lack of access to money coerces guilty pleas and creates an assembly line. In 2015 and 2016, case outcomes varied starkly between detained and released arrestees. Of misdemeanor arrestees who were detained at case disposition, 84 percent pleaded guilty and cases took a median of 3.2 days.10 Of individuals who were released before disposition, 51 percent avoided conviction altogether, while cases took a median of more than 100 days.11 As Chief Judge Rosenthal put it, Harris County maintains a “sentence first, conviction after” system that “pressures misdemeanor defendants to plead guilty” at or near first appearance.12 In short, Harris County’s pretrial system had strayed far from Chief Justice William Rehnquist’s famous words in Salerno: “In our society, liberty is the norm, and detention prior to or without trial is the carefully limited exception.”13
When this country uses money to determine who is detained pretrial and who goes free, the outcome is a two-tiered system. Detained arrestees are 25 percent more likely to be convicted and 43 percent more likely to receive jail sentences.14 Detained defendants receive sentences double those of comparable released defendants.15 And detention, rather than other variables, causally affects these outcomes. Moreover, this coercion turns justice into a pay-for-play affair: Wealthy individuals can pay and go free, preserving their liberty and improving case outcomes, while indigent individuals are taken from their families and disadvantaged in court.
While generating these problems, money bail serves little or no purpose. Chief Judge Rosenthal found that Harris County policymakers, just like officials across the country, had “no adequate or reasonable basis” to believe that release on money bail “provides incentives for, or reduces, better pretrial behavior than release on unsecured or nonfinancial conditions.”16 Nonfinancial incentives provide “more powerful” reasons to appear.17 Even the theoretical case is lacking: Upfront payments to for-profit bail companies are nonrefundable regardless of appearance. And secured money bail provides no incentive to law-abiding behavior during pretrial release because payment is not forfeited if a person commits a new crime. In fact, between 2008 and 2013, imposing secured bail increased the likelihood of unlawful behavior.18
On the whole, ODonnell was a consequential and impressive ruling. The decision applies to more than 50,000 misdemeanor arrestees in Harris County every year, while having implications across the country. On limited interlocutory appeal, the Fifth Circuit upheld Chief Judge Rosenthal’s factual findings and almost the entirety of her legal analysis. As a direct result of the preliminary injunction that was issued in June 2017, as of this writing, over 11,000 people have been released from jail. The pretrial detention rate has gone from roughly 40 percent to roughly 5.6 percent.
In re Humphrey
In re Humphrey,19 a recent decision of the California Court of Appeal, is the clearest exposition of the federal constitutional law surrounding the bail system of any published opinion in American history. Humphrey involves a 64-year-old San Francisco resident who was detained because he could not pay secured money bail. The plaintiff, Kenneth Humphrey, faced allegations that he had followed a 79-year-old man—a fellow resident of the senior home where Mr. Humphrey lived—into his apartment unit and threatened him, ultimately stealing $7 and a bottle of cologne. Because Mr. Humphrey had a history of substance abuse and prior convictions, a predetermined schedule set secured bail at $600,000. A different judge, using a different interpretation of the bail schedule’s formula, later reduced this amount to $350,000.
Although California and federal law require substantive findings and procedural safeguards for ordering pretrial detention, the culture surrounding bail setting departed from those requirements every day in virtually every courtroom in the state. California courts used financial conditions of release to evade the rigorous substantive findings and procedural safeguards required for a detention order. If a person was unable to meet the financial condition, she was kept in jail, regardless of whether there was some risk to the community or alternative to detention. When requiring money bail, California courts did not make findings concerning ability to pay. Consequently, decisions regarding pretrial liberty hinged on whether the arrestee had access to cash. Indigent defendants were kept in jail solely because they could not pay, while wealthier people went free regardless of any assessment regarding how their release would affect public safety. The Humphrey court recognized the illegality and the absurdity of that system.
First and foremost, Humphrey agreed with ODonnell and reiterated a simple insight: A financial condition of release, set at an unattainable level, is the equivalent of a de facto order of pretrial detention. Leaving aside whether it makes any sense to use a financial incentive as a release condition, but then set bail at a level where this incentive could never operate, Humphrey held that any order resulting in pretrial detention must be justified in the same way. This is true both for transparent orders of pretrial detention and for money bail of $1 trillion, which the defendant clearly cannot pay. The court must provide the same good reasons and observe the same procedural safeguards whether detaining someone transparently or detaining someone de facto with money.
The Humphrey court then affirmed that arrestees have a fundamental interest in pretrial liberty. A long line of cases, notably including the Supreme Court’s seminal decision in United States v. Salerno, recognize that the liberty interest of an arrestee is a “fundamental” constitutional right so essential that it is “second only to life itself” in constitutional importance.20 This finding means that the right to release cannot be abridged except through a judicial process finding that no less restrictive condition, or combination of conditions, can “adequately assure the arrestee’s appearance in court and/or protect public safety.”21
Humphrey recognized that the “fundamental” right to pretrial liberty is not absolute. Like most constitutional rights, an individual’s interest in physical bodily liberty can be infringed if the government has good reasons. And Humphrey held that the state has two compelling goals in setting pretrial bail: protecting the safety of victims and community and ensuring future presence at court proceedings.22 The key holding of Humphrey was that, when issuing an order of transparent or de facto pretrial detention, the government must make a determination that pretrial detention is necessary to serve these interests. This means that no alternative conditions of release short of detention could reasonably protect the community or ensure court appearance. In addition, to ensure the accuracy of that determination, Humphrey held that basic procedural safeguards must apply. These safeguards include an adversarial hearing, with notice and an opportunity to present and confront evidence, as well as access to counsel and on-the-record findings by clear and convincing evidence explaining the decision.
To prevent the wealth-based detention barred by decades-old Supreme Court precedent, Humphrey explained that courts must consider a person’s “ability to pay” if they require a financial condition of pretrial release. Otherwise, the court has no idea whether the condition of release that it has just imposed will, in fact, operate as an order of detention.23 Once the court determines that a person cannot pay, the court must treat its order as it would any other order of pretrial detention.
Humphrey concluded with a powerful acknowledgment that the “assembly line” secured money bail system in California has failed, for decades, to live up to our constitutional values. It explained that, while politically difficult, it is the “highest judicial responsibility” to ensure that constitutional rights are vigorously protected.24 As the chief justice showed, this problem “requires the judiciary, not just the Legislature, to change the way we think about bail and the significance we attach to the bail process.”25
Humphrey and ODonnell represent a small sample of the cases that challenge wealth-based pretrial detention. In Robinson v. Martin, for example, our litigation instigated a landmark court order in Cook County, Illinois (Chicago), which required judges to make intentional and reasoned decisions about whether pretrial detention is the only available mechanism to serve a compelling government interest. Consequently, Chicago jails have had 1,500 fewer people in jail every night.26 In Caliste v. Cantrell, we are challenging the bail system in New Orleans, where a blatant conflict of interest has deeply entrenched the for-profit bail industry: In New Orleans following your arrest, the sheriff who walks you into court, the public defender standing next to you, the prosecutor arguing against you, and the judge deciding your conditions of release all take a percentage cut of any commercial bond posted. This generates millions per year for the courts’ cash-strapped budgets.
In other counties and states nationwide, we and others are continuing to bring lawsuits that expose the ineffectiveness and inherent contradictions of how we use secured money bail. Using our experience, we also are working with judges, district attorneys, religious leaders, public defenders, sheriffs, city attorneys, local officials, and state legislators to show that besides being bad law, wealth-based pretrial detention is devastating policy.
The Benefits of Radical Changes
Kalief Browder was a 16-year-old child when he was sent to Rikers Island jail prior to trial. Wrongfully accused of stealing a backpack, Kalief’s secured money bail was initially set at $3,000. Unable to pay, he was caged for three years. He protested his innocence while he was subjected to extensive physical beatings—captured on video—and two years of torture in solitary confinement.27 The charges against him eventually were dismissed, but the damage was done. Speaking about what he endured, he said: “[T]here are certain things that changed about me and they might not go back. . . . I feel like I was robbed of my happiness.”28 Not long after, Kalief hanged himself.
Although millions now know his story, we must acknowledge that there are Kalief Browders in every city and county jail nationwide—even now, as you read this article.
The policy case for reforming our bail system is, therefore, first and foremost a moral one. When we detain people prior to trial, we deny a basic element of their humanity. We deny them access to sunlight and air. We deny them things that we all take for granted every day—the ability to kiss our child goodnight, hold our grandmother’s hand, or hug our mother after a hard day. We jeopardize their jobs, causing lost wages and often lost employment, and put their housing and physical shelter at risk. Every night in a jail cell is a lost class, a lost dinner with a friend, a lost trip to the theater, a lost chance to take a walk with a lover. When we put people in cages, we expose them to rape, sexual assault, physical abuse, and infectious disease. Increasingly, jails across the country have monetized human contact and forbidden in-person visits, further severing connections between family members. All of this severs people from the things that give life joy and meaning. The decision to detain is a decision to dehumanize.
Beyond its moral contours, money bail places a heavy burden on communities. First, pretrial detention is expensive. Incarcerating individuals for short stays, typical of pretrial detainees, is particularly expensive for local jails. Intake expenditures—such as booking, creating records, performing medical screenings, and supplying uniforms—may exceed $800 and are incurred even if the person is released within the hour.29 The small percentage of individuals who cycle through jails may cost three times as much as typical detainees.30 Taken as a whole, 17 percent of U.S. corrections spending goes to incarcerating pretrial defendants31—each year, $14 billion to imprison nearly half a million people every night who have not been convicted of anything.32 Evaluating total costs and benefits, a team of researchers found that pretrial release creates a $55,143 to $99,124 net benefit to society per arrestee.33
Second, pretrial detention increases the chances of conviction.34 The increased rate of conviction is driven, in large part, because pretrial detainees plead guilty more often—approximately 25 percent more often, according to one study.35 A University of Pennsylvania study of hundreds of thousands of cases in Harris County showed that between 2008 and 2013, releasing all misdemeanor defendants would have avoided 5,900 criminal convictions, primarily owing to fewer wrongful guilty pleas.36
Third, money bail creates a cascade of downstream consequences. As Chief Judge Rosenthal found in ODonnell, money bail increases the risks of future crime. Had Harris County released all misdemeanor defendants between 2008 and 2013, there would have been 1,600 fewer felonies and 2,400 fewer misdemeanors by individuals within 18 months of their release.37 This recidivism impact hurts communities in two ways—by imposing safety costs, the direct effect of increased crime, and by forcing taxpayers to finance additional incarceration.
Fourth, pretrial detention has economic effects on tax revenue and future employment. A recent study found that three to four years post-bail hearing, individuals initially released pretrial are 9.4 percent more likely to be formally employed.38 The probability of having any formal sector income over this time period increases 23.2 percent for individuals initially released pretrial, while the probability of filing a tax return increases 16.7 percent.39 These impacts have ripple effects through local economies. Another study found that if a pretrial detainee loses employment, he or she often encounters reduced wages upon securing new employment. For men, serving time pretrial reduces hourly wages by approximately 11 percent, annual employment by nine weeks, and annual earnings by 40 percent.40
Finally, secured money bail has devastating consequences even for those who can purchase their release. The system of commercial bail has become a $2 billion industry, transferring billions from impoverished families to for-profit bond companies. Between 2012 and 2016, in the City of Los Angeles alone, $193 million was transferred in nonrefundable payments.41 For-profit bond companies operate like payday lenders but with “extraordinary powers” whereby they claim to be able to determine who is released from jail (when they compete to offer payment plans) and who stays out of jail (when they threaten to re-jail people if they cannot make installment payments).42 In many cases, commercial bail becomes extortion. Leveraging the “constant daily threat” of reimprisonment, for-profit bond companies use hidden fees and added costs so that clients often pay significantly more than the premium quoted. As Mr. Egana, plaintiff in a recent Southern Poverty Law Center case, put it, “it was kidnapping. . . . They saw the love that my mom has for me, and they used that to their advantage.”43
An Alternative Path Forward
We must build a pretrial system that reflects our values by eliminating wealth-based detention and investing the savings from reduced jailing in anti-carceral, community-based institutions. Concretely, we must create defaults that maximize pretrial liberty, including automatic release on recognizance for most offenses, employing only a very narrow eligibility net within which pretrial detention is potentially authorized. And we must invest in programs that help people succeed. This includes evidence-based approaches like two-way text messages, transportation assistance, and redesign of the summons process and form based on behavioral research. And these changes must be accompanied by the deeper non-carceral investments that our communities really need—afterschool, art, music and theater programs, sports leagues, daycare programs, health centers, lead poison abatement, restoration and healing programs, safe and affordable housing, two-generational poverty programs, and treatment clinics, along with other initiatives that impacted people develop for their communities. When we invest in programs that are conceived in, based around, and led by communities, we take a first step toward building a holistic, proactive, pro-human system of justice. n
2. Danielle Kaeble and Lauren Glaze, Correctional Population in the United States, 2015, Bureau of Justice Statistics, December 2016.
3. National Association for the Advancement of Colored People, 1.
4. See id.
5. Lani Guinier and Gerald Torres, The Miner’s Canary: Enlisting Race, Resisting Power, Transforming Democracy, 263 (2002), in Alec Karakatsanis, Policing, Mass Imprisonment, and the Failure of American Lawyers, 128 Harv. L. Rev. F. 253, 254 (2015).
7. Peter Wagner & Wendy Sawyer, Mass Incarceration: The Whole Pie 2018, Prison Policy Institute, 1 (March 2018).
8. 251 F. Supp. 3d 1052 (S.D. Tex. 2017), aff’d as modified, 882 F.3d 528 (5th Cir. 2018).
9. Paul Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711, 711 (2017).
10. ODonnell, 251 F. Supp. 3d 1052 at 1105.
11. See id.
12. See id. at 1106.
13. United States v. Salerno, 481 U.S. 739, 755 (1987).
14. ODonnell, 251 F. Supp. 3d 1052 at 1106.
15. See id.
16. See id. at 1103.
17. See id. at 1108.
18. ODonnell v. Harris Cty., Tex., 882 F.3d 528, 545 (5th Cir. 2018); also see Paul Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711, 786-87 (2017).
19. 19 Cal. App. 5th 1006 (Ct. App. 2018).
20. Id. at 1037.
21. See id. at 1026.
22. See id. at 1028.
23. See id. at 1029.
24. See id. at 1049.
25. See id.
26. Megan Crepeau, Cook County Jail Drops Below 6,000 Inmates to Lowest Level in Decades, Chi. Trib., Dec. 22, 2017.
27. Jennifer Gonnerman, Before the Law, New Yorker, Oct. 6, 2014.
28. See id.
29. Gerald Wheeler & Gerald Fry, Project Orange Jumpsuit: Effects of Pretrial Status and Days Detained on Case Outcome of Harris County Felony & Misdemeanor A/B Defendants 6 (Sept. 2014).
30. Cindy Rodriguez, The Frequent Flyers of Rikers Island, WYNC News (Nov. 16, 2015), https://www.wnyc.org/story/frequent-flyers-rikers-island.
31. Megan Stevenson & Sandra G. Mayson, Bail Reform: New Directions for Pretrial Detention and Release 2 (Pub. Law & Legal Theory Research Paper Series, Research Paper No. 17-18, 2017).
32. Heaton, supra note 9, at 787.
33. Will Dobbie, Crystal Yang & Jacob Goldin, The Effects of Pre-Trial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges 3 (NBER Working Paper No. 22511, Aug. 2016).
34. See id.
35. Criminal Just. Pol’y Program, Harv. Law Sch., Moving Beyond Money: A Primer on Bail Reform 7 (2016).
36. Heaton, supra note 9, at 787.
37. See id.
38. Dobbie, supra note 33, at 23.
39. See id.
40. Shima Baradaran Baughman, Costs of Pretrial Detention, 97 Bos. Univ. L. Rev. 1, 5 (2017).
41. Stan Paul, UCLA Bail Study Finds Price of Freedom Too High for Poor L.A. Families, UCLA Newsroom (Dec. 8, 2017), http://newsroom.ucla.edu/releases/ucla-bail-study-finds-price-of-freedom-too-high-for-poor-l-a-families.
42. Jessica Silver-Greenberg & Shaila Dewan, When Bail Feels Less Like Freedom, More Like Extortion, N.Y. Times (Mar. 31, 2018), https://www.nytimes.com/2018/03/31/us/bail-bonds-extortion.html.
43. See id.