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OVERHAUL OF THE CA$H BAIL BOND SYSTEM
By Stephen H. Gordon
A person charged with a crime is typically arrested and taken to jail. The accused will sit in jail until the case is resolved unless he or she is able to make bail. In most situations, the defendant must raise a sum of money to pay the bail amount or pay a bail bond company to put up the money. This type of system is referred to as the “cash bail” system.
According to the Bureau of Justice Statistics, each year police make on average over 10 million arrests. Approximately 555,000 of those arrested people will be stuck in jail awaiting trial because they lack the financial resources to post bail. Most of these arrests are for nonviolent crimes. Arrests related to drug abuse constitute the single largest category of arrests.
The system for determining how to release arrested people dates back to medieval times. Reformers say it is time to update it for the twenty-first century. Little by little, states are starting to institute bail reform, and in some cases do away with cash bail altogether. New York, New Jersey, California, and Alaska have led the way. Illinois, Indiana, Nebraska, Ohio, Wisconsin, and several other states have followed suit.
The cash bail system discriminates against the poor and favors the rich. Statistics demonstrate that access to money is the primary determinant of whether a person is released from jail while awaiting trial. This factor is actually more influential than the severity of the alleged crime. Critics of the cash bail system argue that the main focus should be on the alleged crime and the person’s likelihood to show up for court, rather than the ability to pay a specific bail amount.
Recently, a group of detainees who had been denied release from jail for failure to pay their bond amounts sued Harris County, Texas, in federal court. They alleged that the county’s current bail system was unconstitutional and violated the Fourteenth Amendment’s Due Process and Equal Protection Clauses. The district court held a hearing and made several key findings about the link between being poor and being stuck in jail, rather than having the chance to bond out. The court noted that “under the County’s risk-assessment point system used by Pretrial Services, poverty indicators (such as not owning a car) receive the same point value as prior criminal violations or prior failures to appear in court. Thus, an arrestee’s impoverishment increased the likelihood he or she would need to pay to be released.”
The detainees won their case at the district court level, but Harris County subsequently appealed. In ruling in the detainees’ favor, the district court stated that “imprisonment solely because of indigent status is invidious discrimination and not constitutionally permissible.” The United States Court of Appeals for the Fifth Circuit affirmed the ruling, with some modifications. Eventually, the parties settled. Harris County agreed to pay $97 million in damages and to institute permanent bail reforms.
These reforms have resulted in the release of mostly low-level misdemeanor defendants from jail without their having to pay any money out of their own pockets. The local pretrial services offices have developed new ways of ensuring that a defendant shows up for court, instead of relying on the potential forfeiture of bond money as the main incentive.
The most common alternative to cash bail is to release the person on their own “personal recognizance,” meaning that the person is released upon a promise to appear in court, as long as he or she agrees to fulfill certain conditions. This type of release is commonly referred to as a “PR bond.” It already exists in several jurisdictions, including here in Bexar County. This type of bond is typically only available in non-violent misdemeanor cases.
The PR bond option recently became the subject of some controversy when Governor Greg Abbott issued an executive order prohibiting judges from releasing on a PR bond anyone who had any type of violent charges in his or her criminal history. Criminal defense attorneys complained that this rule was overbroad and would prevent the release of defendants who have a twenty-year-old assault case on their record, although their current arrest concerns a minor crime, like shoplifting. Accordingly, the Texas Criminal Defense Lawyers Association (TCDLA), along with sixteen Houston judges, filed suit in Harris County challenging the constitutionality of the Governor’s order.
At first, the TCDLA and the judges were successful, obtaining a temporary restraining order at the district court level. However, the case ultimately made its way to the Supreme Court of Texas, where the restraining order was lifted and the case dismissed for lack of standing. In doing so, the Court noted that the proper party to challenge such an order would be a defendant whose request for release has been denied because of the governor’s order.
There has also been criticism of the use of PR bonds in connection with the recent jailing of police reform protesters. Some protesters in Chicago were released shortly after they were booked into the jail without being required to put up money for bond. Critics claim that some of the people who engaged in vandalism and looting were able to get out of jail and return to the same location to commit the same crimes within a matter of hours. Defenders of the policy retort that a person who has been arrested is presumed innocent until found guilty. Therefore, it is not yet proper to characterize such a person as guilty of vandalism in the first place.
Critics of the current system have also faced backlash from antireform groups who fear that crime will increase if the courts let more people out on bail. So far, the statistics do not seem to support this position. However, these reforms are in the relatively early stages and do need to be balanced with a number of other factors to provide an accurate statistical analysis.
Advocates for reform cite a number of other protections that can be put into place to protect society from those released without posting a cash bond. The most common practice is the use of a monitoring device, such as an ankle bracelet, that tracks movement. Other restrictions are designed to prevent the potential recurrence of specific alleged crimes, like the use of an ignition interlock device on the vehicles of those accused of DWI. A court may also order the released defendant to obtain counseling to deal with mental health issues, or substance abuse problems—factors that often contribute to the crimes with which they have been charged.
Not surprisingly, the bail bond industry has pushed back against bail reform. There are over 25,000 bail bond companies around the country. These companies typically charge 10% of the overall bond amount to the defendant, in order to bond the defendant out of jail. Collectively, they stand to lose billions of dollars around the country if the current cash bail system is modified or eliminated.
Making a defendant’s release contingent upon complying with requirements that help promote public safety is a much better approach than basing release on money. Statistics show that people arrested for crimes are typically less wealthy to begin with, and they more often belong to a minority class of citizens. Basing a person’s release upon how much money he or she has is neither equitable, nor helpful for keeping our overcrowded jail population in check. These reforms should remain an integral part of the larger effort for comprehensive criminal justice reform.
Stephen H. Gordon is the founder of The Gordon Law Firm, P.C. The Firm’s practice focuses on Bankruptcy, Criminal Law, Family Law, Personal Injury, and Wills, Estate & Probate Cases.
