Welcome back to This Month in the Law, my attempt to update you on a regular basis about interesting things happening in the legal world. The first two months I looked at First Amendment issues. Even though I am always fascinated by those topics, I thought it might be nice to go in a different direction this month. So, let’s talk about cash bail in American courts.

Bail Reformers
Most of us have probably not spent very much time thinking about bail. If you have not been arrested or had a family member arrested, bail might not have any impact on your life. But there is currently a movement in America to change the way courts grant bail. What makes this movement so interesting is that it seems to have brought together some strange bedfellows. Sen. Bernie Sanders, one of the most visible progressive voices on the national stage, has introduced legislation address the bail system. Sen. Rand Paul, one of the most iconoclastic libertarians in the country, has long spoken of the need to reform the bail system. The Koch brothers, champions of conservative causes and bogeymen of the left, have been funding projects to reform the bail system. A reasonable question, it seems, would be why are so many very different folks working on this issue?

Bail and Bail Bonds
First, it might be helpful to know what bail really is and how it works in the current system. Bail is a way to make sure someone charged with a crime appears in court. Typically bail refers to people who are waiting for trial, so they have not been convicted of a crime. However, bail can also be used in cases where the defendant has been convicted but is waiting for sentencing. Essentially, bail is a cash deposit in exchange for your freedom. You hand over a sum of cash and promise to come to court when you are supposed to be there. If you fail to show up, the court gets to keep the money. If you show up, the money is returned to you even if you are guilty – it is not a penalty for wrongdoing, it is a promise to appear.

What if you do not have the money required to pay the bond? One option could be to hire a bail bondsman. Typically you pay the bondsman a percentage of the total bond – maybe 10% of the total. The bondsman promises the court to keep tabs on you and make sure you appear for your hearing. If you do not, the bondsman owes the court the amount of your bond. The bondsman has the authority to track you down and capture you to bring you to court. If you appear at the scheduled time, the bondsman gets to keep the amount you paid. So, instead of a deposit to ensure your appearance, the bond becomes a fee charged to you. As a result, the bond system is seen as being highly problematic for poor people. If you are wealthy you can put up cash, which you get back when you appear. If you are poor, you hire a bondsman who charges you a fee which you never get back.

Legislation and Court Decisions
2018 has seen lots of action regarding the bail system. The California legislature passed a bill which eliminates cash bail for misdemeanors and requires the defendant to be released from custody within twelve hours after arrest (again, this is for misdemeanors only). As I mentioned earlier, Sen. Sanders has introduced legislation in the U.S. Senate which would seek to eliminate cash bail and replace it with GPS monitoring or pretrial supervision programs (similar to probation or parole officers).

In addition to the legislative action, there have been multiple court decisions regarding bail. At least three different Federal Circuit Courts of Appeal (these are the Federal courts just one step below the Supreme Court) have issued rulings on bail issues in the past six months. First, in February, the 5th Circuit out of New Orleans struck down the bail system used in Harris County, Texas (Houston). The system in place in Harris County relied on a fee schedule to set bonds, using the suggested amount about 90% of the time. The system said it took into account a defendant’s inability to pay the suggested fee. However, the court found the hearings usually lasted only a few seconds, defendants were not actually given the opportunity to present evidence of their ability or inability to pay, and review of bond hearings rarely, if ever, modified the bond schedule amount. The Court said this system is unconstitutional because it does not make an individual assessment of the defendant. Finally, the court held that defendants are entitled to hearings on the conditions of their bail within 48 hours of arrest.

In July, the 3rd Circuit out of Philadelphia looked at the opposite side of this issue. New Jersey passed a law which did away with the monetary bail system and replaced it with a risk-based assessment. Is the defendant a flight risk or a danger to society? In this case, a defendant argued he would rather pay a cash bond than submit to an ankle monitoring bracelet. He was objecting to the change in the bail system. The court held he did not have any constitutional right to deposit money in exchange for his release. As a result, the court upheld the New Jersey law which did away with cash bonds.

Finally, this month the 11th Circuit out of Atlanta reviewed a revised cash bail system in Calhoun, Georgia. The court originally set bail hearings every Monday, unless there was a holiday. The defendant was arrested for being a “pedestrian under the influence of alcohol”. This man’s name was actually Mr. Walker, and he was charged with walking while drunk (sometimes, truth is stranger than fiction). However, he was arrested a couple of days before Labor Day. Because the court was closed on Labor Day Monday, Mr. Walker would have been held in custody for 11 days before he got a hearing on whether or not to grant him release on his drunk walking charge. After 5 days he filed suit and the court released him. The court also revised their bail policy. The revised policy required a hearing within 48 hours of arrest to determine whether the defendant should be released because he or she cannot afford the bail set by a fixed schedule. The 11th Circuit approved the 48 review hearing process.

Cash Bail: The Kalief Browder Story
Finally, if you find this subject interesting, I recommend learning about the Kalief Browder case. Netflix released a 6 part documentary titled “Time – The Kalief Browder Story”. Kalief was arrested for allegedly stealing a backpack at age 16. The evidence was extremely flimsy. His bail was set at $3,000, which he could not afford. Because of the bizarre speedy trial rules in New York, he was held for three years at Rikers Island awaiting trial. For about two years he was in solitary confinement. The prosecution offered to let him plead guilty and be released for time served. But Kalief was insistent he was innocent. Eventually, after three years, all charges were dropped and Kalief was released from jail. But, the stress of jail and solitary confinement had contributed to a deterioration in Kalief’s mental health. Two years after his release from jail, Kalief Browder committed suicide. It is a tragic story which exposes many flaws in the criminal justice system, not the least of which is the impact cash bail can have on innocent but poor defendants.

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