A Judicial Dilemma: Cash Bail and Its Imperfect Alternatives

Last summer, I worked as a law clerk for the Honorable Truman Morrison, a Senior Judge in the District of Columbia and former Chair of the Board of Directors at the Pretrial Justice Institute,[1] whose career work is to reform bail policy in the United States. This blog is based on what I learned from my conversations with Judge Morrison and through my own research.

What is a money bond?

Most Americans have a general idea of how cash bail systems work, whether by way of personal experience or that of a friend or family member accused of a crime, or watching Law and Order. In exchange for a payment to the court, someone accused of a crime can leave jail while they wait months or years to go to trial. The idea is that an individual is presumed innocent, and should be free to attend school or work, care for their children, and pay bills, up until the day she or he is proven guilty.

Cash bail, also known as “money bail,” is deeply ingrained in our legal system as a way of ensuring defendants show up for court. Records show that as early as 400 A.D. defendants in Anglo-Saxon courts in England were asked to designate a friend or family member — called a “surety”— to pay a settlement if the accused failed to appear for his or her trial.

The modern version of that practice is called a secured money bond (usually referred to simply as “money bonds”). Sometimes, instead of detaining the accused, the judge will give him the option to post bail and go home to await his trial. It makes no difference whether the accused plans to return to court or flee the jurisdiction — he will pay for the freedom to make that choice. The secured money bond functions like a tax on pre-trial release and, like all other taxes, takes a disproportionate toll on the poor. Anyone who has filed for a tax refund will understand the analogy: even though a secured money bond will be refunded to a defendant after he makes all required court appearances, the initial payment is particularly burdensome for those with less of an income. Only those able to pay the full bail amount at the time of arrest will be released on a secured money bond. It’s a lose-lose situation: needlessly warehousing people who can’t post money bond not only costs taxpayers billions of dollars each year, it also increases the likelihood of recidivism.[2]

Are money bonds about to be a thing of the past?

There are approximately twenty major court holdings in favor of the elimination of money bonds. In one widely cited case, O’Donnell v. Harris County, the Civil Rights Corps challenged the use of money bonds for misdemeanors. Judge Lee Rosenthal wrote a 144-page opinion finding that Harris County failed to show a link between financial conditions of release and appearance at trial or law-abiding behavior before trial.[3] Notably, the American Bar Association filed an amicus brief in that case emphasizing constitutional concerns with money-bond systems.[4]The United States Supreme Court hasn’t heard a case on bail since the ‘80s.[5]

A Crossroads

Change is imminent, but there’s a catch. The choice between eliminating the money bond and lawfully detaining individuals who pose a continuing risk to their communities is left entirely to judges. Should it be?

Judges are at a crossroads, where the choice is between limiting preventive detention to those defendants most likely to attempt to flee or threaten the safety of the community and incarcerating everyone. California is the only state that has outlawed money bail and California judges now have virtually unlimited detention powers. Rather than leave pretrial detention up to a judge’s full discretion, Washington, D.C. and New Jersey rely on a risk assessment. D.C. Code § 23-1321, for example, does not prohibit money bonds but allows a judge to issue one in limited circumstances and only if the amount is so nominal that it will not result in the pretrial detention of the person.[6] This means that in D.C., money bonds cannot be used to incarcerate someone awaiting trial who is not dangerous or a flight risk.

A majority of U.S. state constitutions guarantee one’s right to bail[7] and, should money bonds be eradicated in those states, only people charged with first-degree murder, armed robbery, treason, rape and a select few other crimes could be detained pre-trial. The only way for those states to go back to preventatively detaining dangerous defendants is by way of a constitutional amendment.[8]

Risk assessment systems are highly controversial. Many groups, including the Civil Rights Corps, the American Civil Liberties Union (ACLU), and the Southern Poverty Law Center have called for total abolition of risk assessments. Alternatively, in her article, Bias In, Bias Out, Professor Sandra Mayson doesn’t call for the complete elimination of risk assessments, but points out that bad risk assessments are counter-productive and even the best risk assessments are inherently flawed.[9]

Since one cannot predict the future without recourse to the past, any risk tool is going to incorporate a person’s criminal history. Communities of color are policed differently and, as a result, people in those communities develop arrest histories far more quickly than caucasians.[10] Putting aside the obvious problem of racial bias, I would question whether juvenile records should factor into pretrial assessments. Yet another matter of disagreement in the field is whether interviews with the defendant should factor into the risk assessment and, if so, when and how such interviews should be conducted. In the majority of jurisdictions, there’s not even a lawyer present when bail is set.

Where do we go from here?

States moving away from money-bond systems are at a crossroads, where the choice is between incarcerating everyone and finding a fair way to assess the need for preventive detention. One way to ensure consistency may be to develop model bail laws.[11] Another may be better risk assessments. But in trying to return “justice” to our criminal justice system by moving away from money bail, policymakers should be wary of the ways that a person’s racial background exaggerates the likelihood he will be arrested, and in turn shapes criminal record on which every risk assessment is based.


 

[1] WCL students can join the University of Pretrial for free. The University of Pretrial is an online community where members view webcasts, take online courses, and discuss a wide range of pretrial justice issues.

[2] What Changed After D.C. Ended Cash Bail, NPR Weekend Edition Sunday (Sept. 2, 2018), https://www.npr.org/2018/09/02/644085158/what-changed-after-d-c-ended-cash-bail.

[3] ODonnell v. Harris Cty., 892 F.3d 147, 162 (5th Cir. 2018).

[4] Robert Anderson et al., Money Bail and the State of Pretrial Justice in South Carolina, S.C. Law., January 2019, at 22. See also, ABA urges Fifth Circuit to rule rigid bail system used in Harris County, Texas, unconstitutional, American Bar Ass’n (Aug. 10, 2017), https://www.americanbar.org/news/abanews/aba-news-archives/2017/08/aba_urges_fifth_circ/.

 

[5] United States v. Salerno, 481 U.S. 739, 739 (1987); Stack v. Boyle, 342 U.S. 1, 1 (1951).

[6] D.C. Code § 23-1321 (2016).

[7] Except first degree murder, armed robbery, treason, and rape. Some jurisdictions include additional crimes.

[8] New Jersey and New Mexico have amended their constitutions.

[9] Sandra G. Mayson, Bias in, Bias Out, 128 Yale L.J. 2218 (2019).

[10] Richard Delgado & Jean Stefancic, Critical Perspectives on Police, Policing, and Mass Incarceration, 104 Geo. L. J. 1531, 1533 (2016).

[11] See, e.g.,Timothy R. Schnacke, Center for Legal and Evidence-Based Practices, “Model” Bail Laws: Re-Drawing the Line Between Pretrial Release and Detention (2017).

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