Bail System Overdue for an Overhaul in America
“Justice delayed is justice denied” is a legal adage of uncertain origin. It implies if legal relief is possible for an individual that has experienced injury, but is not given promptly, it is the same as no justice at all.
For many of America’s poor, justice has been denied for decades.
When Lyndon Johnson pressed Capitol Hill to approve the federal Bail Reform Act in 1966 he planned the new law as an enlightened model for states that had never modified their bail and bond procedures.
“All too frequently, we lock up men for weeks, months and years — before they get their day in court — only as they can’t afford bail,” Johnson told Congress.
The legislation mandated federal jurists to look at a person’s neighborhood ties and criminal past and measure them against hazards of pretrial freedom.
When he signed the bill, Johnson praised the legislation. The 36th President said it put the country “at the door of a new era” in criminal justice.
50 years later, not many states have passed the threshold. The use of cash bond is yet the dominant practice and often comes with dire consequences for individuals too broke to buy their freedom.
Just a small number of states have eliminated the use of monetary bail. Some states are contemplating changes and others still look the other way. While states have been hesitant to buy into bail system reform, numerous lawsuits have been filed to prompt changes in cities.
As recently as November, San Francisco City Attorney Dennis Herrera called for the abolition of cash bail for indigent defendants and stated he would not defend the city against a lawsuit filed in U.S. District Court which challenges the city’s use of bail before arraignment.
In early November, 2016, legal advocates sued Florissant, a primarily white city just north of Ferguson, Missouri. The suit accuses the city of operating a debtors’ prison that unfairly targets black drivers. In 2014, over 70-percent of vehicle stops involved a black motorist despite only 27-percent of the city population being black. Between 2011 and 2015, the city picked up 3.3 million a year through its municipal court — about 12-percent of the city’s revenue.
In November, New Mexico citizens spoke out for a constitutional amendment to change the state’s bail system. The Amendment gives New Mexico jurists the authority to deny bail when prosecutors provide evidence that a defendant is too dangerous to be walking around free while waiting for trial. The amendment also prohibits the confinement of offenders who aren’t determined to be threatening or a flight risk merely because of economic inability to afford bail.
Reforming New Mexico’s bail system is part of a wider campaign to change criminal justice policies that disproportionately harm the poor and people of color. New Mexico’s move follows statewide changes in Colorado, Illinois, Kentucky, New Jersey and Oregon.
The cash bail system works like this in Nevada and around the nation. When a person is arrested, they are booked into jail. A jurist assigns a bond amount which may range from $100 to hundreds of thousands — or more. The arrestee’s ability to pay or the potential of the arrestee being a flight risk is not considered.
Some of the bail bond companies do try to keep some humanity about their work. “We do the best we can to help our clients, but our hands are often tied by the courts,” said Taylor Barton, CEO of 24/7 Bail Bonds in Las Vegas.
A wealthy defendant could go free immediately based on the agreement that they’ll give up their bond money if they fail to keep scheduled court appointments. Some defendants secure their freedom through for-profit bail bond businesses. Those companies charge a non-refundable premium which can be paid over time.
There’s a lot of money to be made from people who could not pay for their freedom. Earlier this year, critics documented a bail bondsman’s marketing in Las Vegas which included handing out free merchandise in poor communities and opening an office near one of the most dangerous intersections. Advocates for a change in the law say bail bonds companies exploit crime and poverty all to boost the bottom line.
Groups like the ACLU are pushing for broader alternatives to cash bail. The civil liberties group maintains a holistic review to consider a defendant’s likelihood to jump bail would be preferential.
A system like this is in place in Washington D.C. where it is linked to pretrial services which monitor arrestees who require supervision pending trial. Roughly 85-percent of people arrested in Washington are released without financial entanglements. About 90-percent of defendants show up for their court dates and over 91-percent make it through trial without getting re-arrested.
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