Author:Jones, Cynthia E.

I, Miranda Lynn ODonnell, am a 22-year-old woman. I was arrested yesterday, May 18, 2016...for a misdemeanor offense [driving with an invalid license]. I was told by the Sheriff's deputies that my money bail is $2500. I know that because I cannot afford to pay that amount, I have to stay in jail. I saw a TV judge this morning....He said my bail will stay at $2500....I was never asked if I could afford my bail. A sheriff's deputy told me not to say anything during my hearing. It took about 60 seconds. I have a 4-year-old daughter. I receive [public] support her. I can't afford rent so I stay with a friend. I just started working at a restaurant a few weeks ago. I live paycheck to paycheck. I'm worried about whether my job will still be there when I get out. (1) I. INTRODUCTION

Over thirty years ago the United States Supreme Court recognized that "liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." (2) Today, the "norm" is pretrial detention for nearly 450,000 people across the country, many of whom are destitute but eligible for immediate release if they pay the money bail imposed by the court. (3) Throughout the history of America, (4) money bail has been, and continues to be, the most significant barrier to pretrial freedom for those who are arrested but presumed innocent of criminal conduct. (5) For many arrestees, money bail works exactly as intended: it provides an expedient mechanism for pretrial release upon posting a sum of money to seal the defendant's promise to return to court for future hearings. (6) However, conditioning pretrial release on the payment of a sum of money results in de facto pretrial detention for indigent defendants because they will remain in jail until their case is resolved. (7) In some jurisdictions, the amount of money bail courts demanded for minor offenses can be as high as $5,000, (8) effectively placing pretrial freedom far beyond the meager resources of the indigent. At the other end of the spectrum, many people languish in jail for weeks or months even when bail is set as low as a few hundred dollars or less. (9)

It is significant that money bail is imposed routinely in cases involving minor traffic infractions or petty regulatory offenses for which the maximum penalty upon conviction is a fine of a few hundred dollars, but no period of incarceration. (10) Likewise, pretrial defendants can be held in pretrial detention on nonviolent misdemeanor charges which are punishable by up to a year in jail, but will likely result in either dismissal of the charges or, if convicted, a probationary sentence. (11) Moreover, the impact of weeks and months in pretrial detention is profound. Pretrial detainees are at risk of losing any stability they had prior to detention. (12) Even two or three days of pretrial detention causes indigent defendants who are already experiencing socioeconomic disadvantages (i.e., homelessness, mental health disorders, substance abuse) to suffer greater set-backs, including the loss of employment, public benefits, child custody. (13) Also, detainees are exposed to dangers of physical and sexual violence as well as disease and poor medical treatment in jail. (14)

The legitimacy of cash bail that results in de facto pretrial detention in low level criminal cases is questionable when there are readily available nonfinancial forms of pretrial release. Instead of secure money bail which requires the defendant to post a sum of money as a precondition of release, (15) courts could impose an unsecured money bail condition and require payment only if the defendant fails to return to court. (16) There are also a host of nonfinancial conditions of release that could be used to facilitate the defendant's release and reappearance. (17)

The overuse and abuse of money bail by state courts in cases involving nonviolent indigent defendants, particularly those charged with petty offenses, is at the center of the national bail reform movement and the current wave of federal civil rights litigation on behalf of indigent pretrial detainees. Currently there are over a dozen state and federal cases challenging wealth-based pretrial detention. (18) In addition, bail reform measures have been proposed or adopted in more than fifty local jurisdictions, and there are several state-wide legislative measures under consideration to reduce or eliminate the use of money bail. (19)

This article explores the constitutionality and necessity of the use of money bail in cases involving nonviolent indigent defendants charged with low-level offenses. Part II explores the legal challenges that have been raised and discusses the standards and safeguards that federal courts have imposed to prevent wealth-based pretrial detention. Part III whether discusses money bail is actually needed to secure the defendant's reappearance at future court dates, and whether there are equally effective alternatives that courts can utilize to accomplish the goal of preventing failure to appear.


    Misdemeanor arrestees are often...people "living on the edge at the point in their lives that intersects with getting involved in an arrest."...[T]hey may be homeless. They may lack family, friends, and [resources]. Some are, no doubt, of bad reputation and present a risk of nonappearance or of new criminal activity. But they are not without constitutional rights to due process and the equal protection of the law. (20) A. The Bail Determination Process

    The current constitutional challenges to money bail practices in state courts begin with the dysfunction in the initial setting of bail by the court. (21) While the bail-setting process varies, (22) bail hearings from jurisdiction to jurisdiction are fairly consistent. (23) Bail determinations have devolved into a purely informal processing function in the criminal adjudication process. (24) The initial bail hearing in most places takes less than five minutes. (25) Frequently, the amount of money bail imposed has been rigidly established by a pre-set bail schedule that assigns a dollar amount to each criminal charge. (26) Too often when bail is initially set, the defendant does not have a lawyer, (27) there is no judge presiding over the bail hearing, (28) and the defendant watches the hearing on a television screen from the jail. (29) In many jurisdictions the information on the defendant's background and criminal history--critical facts needed for courts to make an informed decision on whether the defendant poses a risk of flight--is simply not available at the time bail is set (30) because often there is no pretrial services agency to gather this information and present it to the court prior to the bail determination. (31) Thus, little to no time is expended making an individualized determination of whether the defendant is a flight risk. (32) Likewise, there is no discussion or consideration of whether the defendant has the ability to pay the money bail or whether there are non-financial alternatives that will assure the defendant's appearance at future court hearings. (33) This indifference to the fact that the money bail imposed could result in weeks and months of pretrial detention for someone facing very minor charges continues during the subsequent perfunctory judicial review of bail days later when the judge could, but usually does not, make an individualized assessment of whether the defendant is a flight risk and reduce or eliminate the cash bail. (34)

    Courts have a legitimate basis for imposing pretrial detention when there is evidence that a defendant is violent and poses a risk of danger to the community. (35) In cases where the defendant poses no risk of danger to the community, however, the only legal basis for imposing money bail is securing the defendant's appearance at future court hearings, or reducing the risk that that the defendant will flee the jurisdiction. (36) Thus, the blanket use of secure money bail as a release condition for all defendants unfairly assumes that each and every person arrested is automatically a flight risk and will not return to court when ordered without an upfront payment of cash bail. (37)

    The long term impact the bail decision are potentially significant because the outcome of the bail hearing could determine the outcome of the entire case. There is also a growing body of empirical data which shows that those subjected to pretrial detention suffer harsher outcomes in their pending criminal cases than do defendants released pretrial. (38) In ODonnell v. Harris County, a federal civil rights lawsuit brought on behalf of indigent pretrial detainees, the judge found that defendants in pretrial detention are pressured to plead guilty by the prosecution in exchange for quick release from jail and threatened with sentencing enhancements if they do not accept the plea. (39) The court also noted that the case dismissal rate is 13% for pretrial detainees, but 32% for those released pending trial. (40) Moreover, the court found that detainees are 25% more likely to be convicted and 43% more likely to be sentenced to a period of incarceration than those released pretrial, and the sentences imposed on detainees are twice as long as released defendants with the same criminal charges and criminal history and background. (41) The court concluded:

    [T]housands of misdemeanor defendants each year are voluntarily pleading guilty knowing that they are choosing a conviction with fast release over exercising their right to trial at the cost of prolonged detention. This Hobson's choice is, the evidence shows, the predictable effect of imposing secured money bail on indigent misdemeanor defendants. (42) Without consideration of the defendant's ability to pay thee cash bail or consideration of whether non-financial conditions of release could be imposed to secure the defendant's reappearance, the cash bail...

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