Once again, in an effort to fix a broken justice system, bail reform is being hammered by legislators. It seems that instead of answering the question of what is truly wrong with our criminal justice system, we must continue to attack what works. With all of the talk about bail reform it does beg the question: does bail discriminate? More specifically, does bail discriminate against the poor?
A recent bail case out of Georgia is bringing this question and others to the forefront of American politics. Undoubtedly, it is in the best interest of the government and the public-at-large to provide a fair and nondiscriminatory justice system, as the case states. It is unclear, however, that the bail system is responsible for the discrimination and unfair practices discussed in the case.
The sole question addressed in the case was “Whether a bail practice that results in the incarceration of indigent individuals without meaningful consideration of their ability to pay and alternative methods of assuring their appearance at trial violates the Fourteenth Amendment.” What the case does not address is the fact that wealth and status are often considerations in setting a bail amount. Bail is many times set at a higher amount for wealthier defendants who may use their wealth to flee or may not be impacted by a lower bail amount. What we do know is that bail is the most effective way to ensure a person’s appearance at future court appearances regardless of wealth, status or any other factor. When defendants are released on their own recognizance (cited and released) they are less likely to appear as seen after the implementation of Proposition 47 in California which reduced many felony offenses to misdemeanors and allowed for the cite and release on many arrests. Counties saw an immediate and significant increase in the number of failure to appear as compared to when defendants were held and released on bail.
The Georgia case states that future appearances can be assured through “nonmonetary conditions such as supervised release or reasonable restrictions on activities and movements.” What is not considered is the burden on the taxpayer and the courts if pre-trial release is mandated. An overburdened justice system is not aided by additional requirements. Requiring the courts, probation or the sheriff’s office to monitor pre-trial defendants creates additional work for a system that is busting at its seams. It speaks volumes that Judges, Sheriffs and prosecutors are united in their fight against eliminating bail. Defense attorneys have also voiced concern over pre-trial release conditions that are as burdensome on defendants as requirements imposed once a guilty plea or conviction is reached. Not to mention the cost to taxpayers. Who pays for the supervised release of defendants? It would be counterproductive to implement a system where the cost of pre-trial release is put on the defendant, so in turn it is put on taxpayers.
The bail system as it currently stands is a reflection of Attorney General Robert F. Kennedy’s remarks that led to the Attorney General’s National Conference on Bail and Criminal Justice in 1964 and the Bail Reform Act of 1966 as well as the amendment to the act in 1984. While the California Penal Code mandates the setting of a uniform bail schedule for each county, a defendant has the right to have their bail reviewed. After the initial arrest a person may choose not to post bail and is required to be seen by a judge within 48 hours of arrest (excluding weekends). A judge may then review the bail amount set at the police station based off of the uniform bail schedule. The judge takes into consideration the crime, circumstances and criminal history of the defendant. The defendant then may request a bail review hearing to present additional information in hopes of further reducing the bail amount. These procedures are put forth to ensure that there is an “individualized assessment” of every defendant.
Given these facts, it seems hasty if not dangerous to constantly question the right of an individual to post bail. Similar efforts have been quashed by local courts including an attempt to eliminate San Francisco’s bail system. This case is not the first and probably will not be the last. Unfortunately, we not must wait and see what the Court of Appeals will decide.