to pay remain in jail, with attendant consequences on employment, financial stability, family and community ties and well-being, health, and ability to defend against criminal charges (as described in more detail below). For many poor and working class individuals, “[b]ail equals jail as a practical matter.”69 At the same time, the factors that make bail especially burdensome for lower-income defendants may also prevent them from obtaining release without financial conditions, such as OR or Supervised OR. “Defendants released on their own recognizance must . . . convince a judge that they have sufficient ‘ties to the community,’” which are “often assessed in terms of employment and stable housing.”70 Thus, defendants who struggle to maintain employment and housing may be deemed ineligible for OR release due to socio-economic factors – even though they stand to benefit the most from non-monetary forms of release. Research has shown, moreover, that the money bail system has a disproportionate adverse impact on minority defendants. A study that sampled felony cases between 1990 and 1996 found that only 27% of white defendants were detained throughout the pretrial period because they could not post bail, compared to 36% of African-American defendants and 44% of Hispanic defendants.71 This disparity may simply reflect the disparate poverty rates among different racial and ethnic groups in the United States, but demonstrates the disproportionate impact of money bail on these communities.72 There is a growing consensus that many individuals who are detained solely because of their inability to make bail “could be released and supervised in their communities – and allowed to pursue or maintain employment and participate in educational opportunities and their normal family lives – without risk of endangering their fellow citizens or fleeing from justice.”73 In many cases, ability to make bail has little or no relationship to a defendant’s likelihood of failing to appear for court dates or jeopardizing public safety prior to trial. As critics have pointed out, “defendants with financial resources can purchase release even if there is a high risk that they will engage in pretrial misconduct, while low-risk defendants who are poor may be needlessly held in jail.”74 Even for those indigent defendants who do manage to make bail – which typically is not calculated according to ability to pay – scraping together the payment may impose a significant burden on families that is not balanced by any benefit in terms of public safety, technical compliance, or court appearance rates. 2. Effect of Money Bail on Public Safety and Appearance Rates
69
Human Rights Watch, The Price of Freedom: Bail and Pretrial Detention of Low Income Nonfelony Defendants in New York City, p. 26 <https://www.hrw.org/sites/default/files/reports/us1210webwcover_0.pdf> (hereafter The Price of Freedom). 70 Id., p. 38. 71 COSCA Policy Paper, pp. 4-5. 72 Id., p. 4. 73 National Symposium on Pretrial Justice, Summary Report of Proceedings, Remarks from the Honorable Eric H. Holder, Jr., Attorney General, U.S. Department of Justice, p. 30 <http://www.pretrial.org/wpfb-file/nspj-report2011-pdf>. 74 Pretrial Detention and Jail Capacity, p.5.
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