Bail Is a Process, Not an Outcome
Having litigated bail issues for over ten years, there’s one thing I’ve learned about our bail system: people do not understand it. Unfortunately, last month’s federal executive orders — attempting to eliminate “cashless bail” in Washington, D.C. and across the country — suffer from this same misunderstanding. Too often, people incorrectly think cash bail improves public safety. It does not.
Equal Justice Under Law is committed to addressing wealth-inequality in our justice system, and bail was one of the first issues we tackled. We have filed more than a dozen cases across the country to get cities, counties, and states to adopt bail systems that do not discriminate based on wealth and that give everyone — rich or poor — an equal right to freedom prior to trial.
Cash bail is designed to function like collateral: someone is arrested and given a price-tag for their freedom — perhaps $10,000 (in my experience across the country, a typical bail amount). This $10,000 payment is refundable if they show up for court; it’s designed as collateral to ensure appearance. But cash bail has the perverse effect of making pretrial freedom hinge on wealth. If the arrestee can afford $10,000, they walk free prior to trial regardless of their potential danger to others. If they cannot afford $10,000, they languish in jail even if they pose no danger to the community. Cash bail makes wealth-status the sole criterion for pretrial freedom, thus undermining our shared value that each of us is innocent until proven guilty.
Gary Welchen — a client of ours — was arrested in Sacramento. During a period of homelessness, he was accused of breaking into an empty house under construction: trespassing and breaking-and-entering. Though no one considered Gary a danger to anyone, he was told he would have to stay in jail unless he could pay $10,000. Eventually, his charges were dismissed, but not until after a lengthy jail stay.
Crystal Patterson — another client of ours — was accused of a brawl with a relative (in a scene not too dissimilar from my own family’s Thanksgivings) amounting to assault-and-battery. Her bail was set at $150,000. As the sole caretaker for her grandmother, Crystal was desperate for release. If she could pay the full $150,000, it would have been completely refunded after her case concluded, but she couldn’t afford that. Instead, she paid 1% ($1,500) and entered a loan-agreement with a private bail bonds company to pay the balance up to 10% ($15,000). Days after she signed that agreement, her charges were dismissed, her case was dropped, and she still owed $13,500 to a bail company. Crystal was never convicted of any crime, and she spent years paying her bail debt.
Thanks to the work of Equal Justice Under Law and other organizations, many cities, counties, and states have eliminated cash bail in preference for a cashless system. Study after study confirms that cashless bail does not harm public safety. A comprehensive report by the Brennan Center showed that, across 33 cities, bail reform did not increase crime, and in many cases, crime decreased. Numerous other studies confirm the same finding.
Last month’s executive orders perpetuate confusion about bail that serves nobody. They claim to be premised on a concern for public safety, but they do not connect the dots because they fail to realize that cash bail is a process, not an outcome. For example, in Washington, D.C., when someone is arrested, a judge makes a determination about whether that arrestee poses a danger to others or a risk of fleeing. If no danger is present, the judge orders that person released. If, however, the judge finds a risk of danger, the court can order detention. When thinking about public safety, we care about outcomes: whether someone is released or detained prior to trial is an outcome.
But once someone has been ordered released, there is a question of process. Should the released person be required to post collateral? Should the released person be ordered weekly check-ins with a probation officer, drug-screens or alcohol-tests, stay-away orders, or other conditions? Cash bail is a process for release.
If you believe that dangerous people should be locked up prior to trial, cash bail is not your solution. Cash bail is simply a process that allows anybody release if they can afford the price tag. If you care about public safety, your focus should be on outcome determinations, hopefully balanced with your own principles of fairness, due process, and the presumption of innocence.