PJI is looking for stories of “pretrial
injustice”-- stories of how the current bail system in America has failed or is
currently failing for individuals involved in the criminal justice system.
Often times, pretrial injustice goes unreported and forgotten. These stories
could be about:
- A time when
money caused unnecessary incarceration of an individual
- An instance
when risk assessment or preventive detention would have prevented future
- Jail crowding
due to unnecessary pretrial incarceration
- Any other
example of current policies or laws that lead to unsafe, unfair, or
inefficient pretrial practices
We hope to be able to remember and share the
stories of individuals, families and communities who are negatively affected by
the bail laws in America. We encourage you to share these stories and/or news
articles by emailing them to email@example.com
the Conference of Chief Justices mid-year meeting in Puerto Rico two weeks ago,
the nation's highest-ranking state judicial officers adopted a bold and
historic resolution calling upon our state courts
to "adopt evidence based pretrial practices" and to "advocate
for presumptive non-financial pretrial release."
the resolution endorsing and commending the
recent Conference of State Court Administrators (COSCA) Policy Paper on
pretrial justice, the Conference of Chief Justices noted that judicial pretrial
decisions, made thousands of times each day, have "significant and
sometimes determinative" impact on defendants, dispositions and sentences
and on the costs borne by local communities, which must pay for expensive and
often needless pretrial detention.
the passage of this resolution, the Conference of Chief Justices joins with COSCA, the International Association of Chiefs of Police,
the Association of Prosecuting Attorneys, the American Council of Chief Defenders, the National Association of Criminal Defense Lawyers,
the National Association of Counties and numerous other stakeholder and constituent groups that
have answered Attorney General Eric Holder's challenge to establish safe, fair
and effective pretrial justice and have publicly called for pretrial reform.
Please click here to read the resolution and the COSCA
white paper calling for pretrial risk assessment in lieu of
bond schedules, alternatives to sureties and other specific pretrial justice
recommendations and reforms.
story out of the St. Louis Post-Dispatch is a glaring example of the
irrational decisions being made all over the country stemming from an addiction
to money bond.
The story claims that a St. Louis Sheriff’s worker allowed
defendant, Terrell Love, to be freed from jail without paying his $15,000 bail.
During the next four months neither Love or the judges and lawyers he
interacted with on other cases were aware he was a “Fugitive”. He continued to
go to court and stay out of trouble—the point of bail.
Once officials were made aware of Love’s fugitive status by
a local for-profit bondsman, they immediately arrested him. His four charges
are all drug related and he likely poses little or no danger to the community.
So why is he being held? He is attending court and not committing new crime as
far as we can tell, so the only other explanation for his incarceration is
punishment (which is unconstitutional under the law).
St. Louis, like many other jurisdictions across the country,
needs to reevaluate how they do business at the front-end of the system. The
use of validated risk assessments and pretrial supervision will not only help
unnecessary incarceration, but also ensure that dangerous individuals don’t get
out just because they have money. Pretrial services programs around the country
have shown impressive results lowering jail populations, increasing public
safety and court appearances, and saving money across the system.
For years, risk assessments have been used in almost every
industry. From healthcare, to education, to car insurance, assessing risk is
just something we expect.
I’m sure many of you know a teenager and we’ve all survived
those awkward years. One of the most exciting times of a teenager’s life is
passing their drivers test and getting their license. Car insurance companies
are well aware of this excitement and put teenagers in a special category
(parents of teenagers know this isn’t a cheap category). Usually when a
teenager gets their license they haven’t caused a car accident, but insurance
companies know they are much more likely to cause an accident than an adult.
They know this because millions of teenagers before them have proven themselves
dangerous behind the wheel. Insurance
companies look at the characteristics of a teenager (gender, GPA, etc.) and
come up with the cost of insuring that ticking time bomb. We don’t prohibit
teenagers from driving, but we also don’t treat them the same as responsible
adults. Some of the ways we mitigate the risk of teenage drivers is through
drivers’ education, and laws restricting driving at night, or prohibiting passengers.
Another area that actuarial risk tools come in handy is in
healthcare. Through rigorous research we have identified some of the risk
factors of different illnesses and often times they are similar to the risk
factors of completely different illnesses. For example, having a heart attack
and contracting cancer have similar risk factors. Things like age, smoking
obesity are all factors that can increase your likelihood of having a heart
attack or contracting cancer. Fortunately, doctors know these risk factors and
can help mitigate them by prescribing medication, exercise, or improved diet.
So if actuarial risk assessments have become so commonplace
in so may industries, why are we not assessing risk of individuals who have
been arrested? In recent public opinion polling a number of focus groups were
asked if they would support the development of a risk assessment tool for bail.
The overwhelming response wasn’t just yes, but confusion as to what we are
doing now. Currently, in far too many
jurisdictions, criminal justice systems are using one factor to determine
risk—current charge. What if we looked at the whole person, not just what they
have been accused of? We don’t stop teenagers from driving simply because of
their age, so why incarcerate an individual if we only know one thing about
him? By taking into consideration other risk factors such as other pending
cases, failure to appear history, employment, substance abuse issues and more,
we can more accurately identify the risk of an individual.
Once an individual’s risk is identified, we can mitigate
that risk. Currently bail schedules tell us how much an individual has to pay
in order to get out of jail, but how does that ensure his or her appearance in
court and how does it keep the community safe? The short answer is it does do
neither, once they pay their bond there is no treatment and certainly no
supervision. Bail has two purposes, protect the integrity of the courts through
court appearance and protect the community. After identifying the risk, instead
of placing a dollar amount on a person, we need to do things that actually
mitigate the risk through supervision, court reminders, or preventive detention
to name a few options. The current system is broken, through the use of science
and actuarial tools we can have safer communities, fairer treatment of the
accused, and save taxpayer dollars.
A new report out of
Texas A&M on the Wichita County Defenders Office is shining a great deal of
light on the inequalities in the criminal justice system especially at the
front end of the system. The report
“One of the most important functions of the defense is to obtain clients’
release from detention. People in jail are at greater risk of negative
consequences including loss of a job, additional legal difficulties due to
unmet obligations (e.g., child support), and personal costs to family members.
Because an individual out on bond is relieved of these pressures, they are
better positioned to develop an effective defense and negotiate favorably with
the prosecutor. The benefits of pre-trial release are apparent in the data. In
Wichita County, statistically identical defendants who make bond experience:
· 86% fewer pretrial jail days
· 333% better chance of getting deferred adjudication
30% better chance of
having all charges dismissed
24% less chance of
being found guilty, and
54% fewer jail days
The report goes on to
defendants are less likely to make bond than other people. In fact, ability to
pay (measured by indigent status) is a more powerful influence on pretrial
release than objective risk indicators such as a current felony charge or up to
four prior felony arrests….
“It may be expected that the same individuals who are unable to afford an
attorney also find it more difficult to pay bond. What is striking, however, is
that ability to pay is a more powerful influence on pretrial release than a
current felony charge or up to four prior felony arrests. Defendants’ access to
wealth has a disproportionate influence on the bonding determination over these
more relevant considerations. One strategy to address is inequity through a
pretrial services division where people can be assessed for meaningful
indicators of risk such as pending charges, prior criminal record, family and
community ties, employment status, and education status. Although Wichita
County does not currently have such a division, ultimately reserving pretrial
detention for those most likely to pose a real threat not only promotes
fairness but also helps contain costs to counties.”
Take a look at the full article here.
There are some in the bail reform movement, myself included,
who claim we have entered the third generation of bail reform. The first
started in the 1960s with the Vera Personal Recognizance experiment, the
Supreme Court ruling that bail must be individualized,
and the Bail Reform Act of 1966 focusing bail on appearance in court. During
that time, the first ever National Pretrial Symposium was convened where Bobby
What has been made clear today,
in the last two days, is that our present attitudes toward bail are not only
cruel, but really completely illogical.
What has been demonstrated here is that usually only one factor
determines whether a defendant stays in jail before he comes to trial. That factor is not guilt or innocence. It is not the nature of the crime. It is not the character of the
defendant. That factor is, simply,
money. How much money does the defendant
The second generation
of bail reform introduced the idea of safety to the bail decision. The Supreme
Court upheld the Federal Bail Reform Act of 1984,
which added danger as a factor to consider when addressing bail. Almost every
state thereafter adopted similar language to include both flight and danger.
During this generation pretrial services agencies began to gain traction and
research was collected on legal and evidence based practices.
In the years
leading up to 2010, the third generation of bail reform began to take root and
in the summer of 2011 the Office of Justice Programs and the Pretrial Justice
Institute held the second ever National Symposium on Pretrial Justice. From
that symposium and the recommendations from the Attorney General, a Pretrial
Justice Working Group was created to address issues relating to bail and pretrial
justice. During this generation several
national organizations have come out in support of a pretrial system that
uses legal and evidence-based practices at the front end of the criminal
justice system leading to the use of validated-risk assessments and pretrial
supervision and diversion. Now with unprecedented broad-based support,
hopefully this third generation of reform will change the situation that Bobby
Kennedy described in 1964—Where money decides who sits in jail and who goes
home. Only time will tell.
A few years ago a small group of criminal justice planners
in Jefferson County, Colorado noticed the jail seemed to be overflowing with
individuals waiting for their case to be heard in court. They decided to start
collecting and look at the data to find out how many people actually were in
pretrial status and what was keeping them in.
What they found after a six-month examination of the jail surprised even
Their jail was about 42% pretrial defendants, but that’s not
the part that surprised them. What surprised them was why they defendants
incarcerated. If a bond amount was set at $200 or less, 28% of defendants did
not post. If the bond amount was between $201 and $750, 41% of defendants did
not post and when they did post if took on average 6-7 days. Finally, they
looked at everything $750 or higher and found that two-thirds of defendants
remained in jail and did not come up with the funds to post their bond. The
small percentage of individuals that did post a bond of over $750 took 9-10
days to do so.
Among those who did get out of jail, court appearance and
public safety was the same no matter the bond amount. These numbers demonstrated
the antiquated secured money bail practices in their criminal justice system.
Since discovering these findings, they have worked hard to remedy the
situation. In the past few months, nine counties in Colorado have begun to
implement a validated pretrial risk assessment (CPAT).
California’s Public Safety Realignment has created what
Homer Simpson would call a crisitunity
(crisis + opportunity = crisitunity). With an increasing number of convicted
individuals serving time in county jails, authorities have had to reexamine
their local criminal justice systems. What they’re finding is an amazing
opportunity in the midst of a crisis.
California has one of the highest pretrial incarceration
rates in the country with over 70% of jail inmates awaiting trial, an increase
of over 12% since the mid 90s. Many
of the individuals are in jail not because they are a danger to society or
because they are a fight risk, but simply because they cannot afford bail.
Places like Yolo County are doing something about the large
number of pretrial detainees. They have worked with stakeholders in their
community to establish a pretrial services program. The program consists of a
risk assessment tool and supervision of individuals prior to trial. The County has seen great results from the
program with 92% of individuals showing up to court and 95% not committing a
new crime. The combination of quality risk assessment and supervision has
strengthened stakeholder and community support of a program that is increasing
the number of people waiting for their day in court in the community, not in
For years the Pretrial Justice Institute has pointed to the
use of bail schedules as not only contradicting U.S. Supreme Court law, but
also pointing to their irrational nature. An example of this comes from a
report out of California that
compares bond amounts between 10 different counties for two different offense charges.
The graph below shows that an individual arrested for possession of a
controlled substance in Fresno or Sacramento will likely receive a bond amount
of $5,000 according to the county bail schedules. On the other hand, in places
like San Bernardino and Tulare the presumptive bail would be 5 times that of
Fresno or Sacramento at $25,000.
It is important to note that Fresno and Tulare counties are
neighboring counties. If someone is
arrested for check fraud in Tulare their bail would be ten times more than the
bail amount in Fresno County. This
sample of 10 popular counties in California is just one example of the huge
discrepancy and arbitrary nature of bail schedules.
On July 3, New York Times
Columnist Ethan Bronner wrote a piece on the unfairness and possible unconstitutionality
of private probation companies. A week later, an Alabama Judge temporarily shut
the system down. These private institutions had been given the ability to not
only assess and collect fees, but also incarcerate someone if they could not pay.
The article made very clear that these private companies weren’t doing anyone
any good. There are striking similarities between these private probation
companies and bail bondsmen, except for one glaring difference—bail bondsmen
deal with people prior to being found guilty.
Our current system of using money bail and bail bondsmen is a system that
punishes individuals before determination of guilt is found. Their
nonrefundable deposits are both a punishment and requirement for freedom. Bail hits
the poor especially hard, they may not have the $1,000 or even $100 to pay a
bondsman to get out of jail, and so they will remain there for weeks or months
while supposedly being presumed innocent. Every day in America almost
two-thirds of individuals in our local jails are awaiting trial and the only
crime they have been found guilty of is not being able to afford to pay a bail
The Pretrial Justice Institute
commends Judge Hub Harrington for his role in putting an end to private
probation companies who prey on some of the least advantaged among us. Judge
Harrington referred to the business of these private probation companies as a
“debtors’ prison” and “disgraceful.” This “debtors’ prison” isn’t just happening
under private probation companies. The setting of money bail under current bail
practices leaves defendants with two options, pay the bondsmen or remain in
We encourage Judges and
others involved in the criminal justice system to not just look to private probation
companies, but for-profit bail bondsmen as well. Jurisdictions need to begin to
move away from the antiquated system of money bail and to begin using
evidence-based and constitutional methods of dealing with individuals awaiting
trial. As money is taken out of the equation of whether to release an
individual pretrial, the system will become fairer, more just, and produce