Illustration by Hisashi Okawa. Get Informed : Subscribe to our newsletters for regular updates, analysis and context straight to your email. Unsurprisingly, a lot of folks need bail bondsmen, who often charge a nonrefundable fee amounting to 10 to 15 percent of the bail amount. From the conservative governor of Georgia, Nathan Deal, to the progressive district attorney of Philadelphia, Larry Krasner, criminal justice reform is increasingly a winning issue. The decision whether to grant bail lies in the hands of magistrates and judges. They move from town to town.
In June , Kim Foxx, the lead prosecutor for Chicago, announced that her office will no longer seek money bail for defendants accused of low level offenses. Harris County, Texas, District Attorney Kim Ogg supported the elimination of bail for people accused of misdemeanors and wrote a brief from her office supporting the use of pretrial assessments for those accused of low level crimes. The California attorney general also wrote a brief supporting the elimination of the cash bail system in California.
In February , newly elected Philadelphia District Attorney Larry Krasner announced that his office would stop seeking bail on 25 criminal charges, which include retail burglary, prostitution, unauthorized use of a motor vehicle, resisting arrest, providing false identification to law enforcement, and many drug offenses.
While not a long-term solution, bail funds provide a short-term are helping to alleviate the burden of excessive bail on the poor. They are nonprofit organizations that front bond payments for those who cannot afford them. Other similar funds have been established in major cities around the country. Some places, like Memphis, Tennessee, automatically charge bail funds fines and fees, making bail fund efforts difficult to sustain. Courts are striking down existing bail systems as unconstitutional. Challenges to existing systems are pending in local courts around the country, in both red and blue states.
State attorneys general and other members of law enforcement are also recognizing that cash bail hurts the poor. On Jan. According to the complaint, Dallas County operates a two-tiered system in which poor defendants are detained indefinitely while wealthy defendants purchase their freedom pretrial. In Dutchess County, New York, one judge became impatient with the protracted bail reform process and issued a scathing opinion attacking the money bail system.
Police had arrested Christopher Kunkeli for shoplifting a vacuum cleaner from Target, a misdemeanor. Kunkeli remained in jail for nearly five months until he agreed to a plea deal. In her ruling, she noted that in New York, 60 percent of individuals are held in jail without a conviction, before their cases go trial; in New York City, that number is as high as 75 percent. Harris County ] Prior to the filing, Harris County routinely jailed people for failure to pay bail on misdemeanors like driving without a license.
Last fall, a federal judge struck down the monetary bail system used against misdemeanor defendants in Calhoun, Georgia, as unconstitutional. Officials in Nashville are contemplating significant changes after the nonprofit law firm Civil Rights Corps threatened to sue over its bail system. A group of judges, public defenders, and district attorneys is putting together a proposed plan to minimize cash bail, with the aim of starting reforms in March.
And when the judge sets an unaffordable cash bail that will result in extended pretrial detention, he must issue written or orally recorded findings of fact. State and federal lawmakers are debating legislation to eliminate or reduce the use of cash bail. The new law, which took effect on Jan. The law created a pretrial enforcement division to determine, on a case-by-case basis, the likelihood that a defendant will show up in court or commit crimes if released.
The judge reviews the risk assessment score, but prosecutors and defense attorneys can argue for harsher or lighter restrictions before the judge makes a decision.
The judge can impose secured bail bonds only for individuals charged with violent offenses and with high risk scores, while those charged with nonviolent misdemeanors must be released. For all others, there is a presumption of release. With the backing of Atlanta Mayor Keisha Bottoms who was pushed by civil rights groups and grassroots advocates , the City Council approved an ordinance in February to eliminate the cash bail requirement in municipal court for nonviolent misdemeanor charges or city ordinance violations.
At least three North Carolina counties — Mecklenburg, Durham and Buncombe — have moved toward such a system. Those counties were part of the John D. In Texas—as elsewhere—secured bail requires a defendant to post a bond, either out of pocket or from a surety, often a bail bondsman, who requires a non-refundable fee.
Unsecured bail allows the defendant to be released without money down up front, but imposes liability on the back end if the defendant fails to appear or comply with conditions. In Harris County, when a misdemeanor defendant is arrested, the prosecutor asks for a secured bond amount according to a bond schedule established by local judges.
Hearing Officers set bail, at a probable cause hearing to be held within 24 hours of arrest. When making bail determinations, state law requires an individualized review of things like ability to pay, the charge, and community safety. The bond schedule is not supposed to be mandatory and Pretrial Services sometimes offer bail recommendations. The federal trial court found, however, individualized assessments do not actually occur. The probable cause hearing frequently is not held within 24 hours of arrest; it often last seconds; and defendants are told not to speak and are not given an opportunity to offer evidence.
Some are hoping the ruling will pressure other jurisdictions to make long-overdue reforms before they end up in court themselves. The group will launch a public information campaign at its annual membership meeting in May , where it will hold a panel on cash bail and its Campaign for Smart Justice.
If you have enough money, you can buy your freedom. That presents serious questions about the constitutional right to equal protection under the law, Shah said.
Other states have found that something as simple as a more effective and efficient system for communicating with defendants about their court dates drastically reduces the number of people who fail to appear for them. Prevailing public ideas about defendants being de facto dangerous or a risk to flee are often based in classicism and a failure to understand the lives of poor people and how they interact with the criminal justice system, Clark said.
Across the nation, 62 percent of people in jail are there because they are awaiting trial, usually for misdemeanors or lesser offenses. This is also why the bail bonds industry, which argues that handing over money is the only way to ensure people will return to court, has vociferously combatted attempts at bail reform whenever they spring up.
Philadelphia is a new entrant to a movement that has been on the upswing. In , D. Last year, New Orleans implemented a pilot program that used a risk-assessment tool to cut down on cash bail. Atlanta is considering a proposal to eliminate cash bonds next week.
Nashville has plans to overhaul its pre-trial release program early this year. Cities have limited control over how much they can truly do to end the system of cash bail. New York City has taken significant steps: It instituted a pre-trial release program , expanded its Bail Expediting Program , and established a city-run bail fund. But only New York State has the power to abolish cash bail entirely, and state legislatures are often more conservative than blue cities clamoring for criminal justice reform. In , researchers at Princeton University analyzed court data in Philadelphia.
Instead, most judges ended up deferring to money bail.