Putting the Bail Industry’s Lawsuits in Context

 

Litigation has been a successful strategy in challenging longstanding money bail practices across the country. In just a few years groups like Civil Rights Corps and Equal Justice Under Law have changed the pretrial legal landscape, resulting in more equitable treatment of arrested individuals.

The for-profit bail industry has been active in fighting these cases and has now put its weight (and money) behind two legal challenges against recent pretrial system improvements in New Jersey and New Mexico. 

We recommend you read the complaints (linked here and here) and assess each case for yourself. Before you make up your mind about the merits of these cases, however, we’d like to add some context. Both hinge on two key notions. The first is the “option of bail”—defined by bail industry proponents as the option to pay a financial bond for one’s pretrial release. The second notion concerns the imposition of “pre-arraignment restraints”—characterized in the complaints as release conditions, such as home detention or electronic monitoring, that seek to limit the movement of certain individuals as they await trial in the community.

To understand what’s at stake here, it is important to recall how pretrial release and detention works (or doesn’t) under the money-based systems that the bail industry is fighting to maintain.

Currently...

  • The “option of bail” is meaningless to those who can’t afford to pay. Nearly two-thirds of people in jails across the U.S. are unconvicted —mostly people who are in jail because they can’t afford money bail. From 2000 to 2014 unconvicted people accounted for 95% of jail population growth, nationally.
  • Not all “pre-arraignment restraints” are as tangible as clunky GPS anklets. Many people and their families go into debt to bondsmen to purchase their own or a loved one’s pretrial release. Even if the person’s case results in a dismissal, a finding of not guilty, time served, etc.—that debt remains and may take years to resolve.
  • The “option of bail” the cases assert has been eliminated, allows any individual with sufficient financial means to purchase pretrial release without meaningful or customized supervision. Research shows that half of individuals assessed as a high risk for pretrial failure are able to use this system to buy release.
  • Bail bonding agents may, and do, require some clients to wear electronic monitoring/GPS devices; what they call a “pre-arraignment restraint” in both suits. Bonding companies are typically poorly regulated and use questionable, sometimes violent, practices.

Courts should be fully aware that any conditions imposed on people who are legally presumed innocent can amount to “pre-arraignment restraint” and should be ordered only when it can be shown they are the least onerous option for improving court appearance and public safety. The definition of “least onerous” should be vigorously and individually determined in court.

America has yet to create a perfect pretrial justice system that never falls short in meeting the sometimes competing demands of individual liberty, presumption of innocence, smooth judicial operations, and public safety. But we’re getting closer, and that’s no small thing. The recent changes in New Jersey and New Mexico are vast improvements and should be recognized as such, especially when compared to the inequitable and dangerous money-based practices they have replaced.

UPDATE: On September 7, a federal judge denied a motion by the bail industry to issue a preliminary injunction that would have blocked the state's recent pretrial improvements.

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