Bail and Mass Incarceration

• Publication year: 2018

Bail and Mass Incarceration

Samuel Wiseman
svw5786@psu.edu

BAIL AND MASS INCARCERATION

Samuel R. Wiseman^*

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It is widely known that the United States has the highest incarceration rate in the developed world, and the causes and ramifications of mass incarceration are the subject of intense study. It is also increasingly widely recognized that the high rates of pretrial detention, often linked to the use of money bail, are unjust, expensive, and often counterproductive. But, so far, the links between money bail, pretrial detention, and mass incarceration have been largely unexplored. Our criminal justice system relies primarily on plea bargains to secure convictions at a relatively low cost. And, as shown by recent empirical work, the bail system, which results in high pretrial detention rates for indigent defendants, plays a significant role in incentivizing quick pleas, and leads to more convictions and longer sentences. Releasing more defendants pretrial would generate more pretrial motions, lengthier plea negotiations, and more trials, and would thus raise the cost—in the form of prosecutors, public defenders, and judges—of convictions and imprisonment. In other words, if we release significantly more defendants pretrial, we will have to either spend more on criminal justice or convict fewer people and punish them less severely. In addition to inducing quick, inexpensive guilty pleas from defendants unable to post bond, money bail also plays a more subtle role in sustaining high incarceration rates. Money bail, by its very nature, discriminates based on wealth, and thus provides a built-in sorting mechanism —politically weak low-income defendants are pushed into the quick-plea process, while wealthier defendants are able to obtain

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release and the increased access to more robust process that it affords. If politically better-represented wealthy and middle-class defendants were detained, and thus subjected to at least some of the same pressures to plead guilty as indigent defendants, there would, in all likelihood, be more demand for reform.
This Article explores the role of bail in mass incarceration, concluding that opponents of mass incarceration should pay increased attention to the pretrial process as a locus of reform. Relatedly, it analyzes the likely impact of the bail-plea bargain link on future bail reform—which, of course, serves important interests beyond reducing the prison population, such as fairness and the avoidance of wrongful convictions.

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Table Of Contents

I. Introduction...................................................................238

II. Bail, Pretrial Detention, and Mass Incarceration: Lowering the Cost of (Lengthy) Convictions...........245

a. money bail leads to the detention of indigent defendants................................................................247
b. pretrial detention increases conviction rates and sentence length.......................................................250
c. bail, pleas, and incarceration: making convictions cheaper......................................................................252
d. supply and demand.....................................................255

III. The Political Economy of Bail and Its Role in Maintaining the Status Quo........................................257

a. avoiding political pooling.......................................258
b. clearing dockets........................................................268

IV. An Integrated Approach: Implications for Reform Efforts.............................................................................272

a. pretrial reform as an instrument of systemic change........................................................................273
b. blunting stakeholder opposition...........................276

V. Conclusion......................................................................279

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I. Introduction

The movement for reforming the U.S. bail process—a system in which thousands of non-dangerous, low-income defendants are jailed pretrial simply because they cannot afford bail¹ —is gaining momentum. A recent federal appellate panel held that Houston's money bail system violates due process and equal protection rights,² and similar legal arguments have succeeded in local and federal courts around the country—most recently in california.³ These decisions build upon a growing number of legislative bail reforms.⁴

These changes are important for the defendants who are able to avoid jail as a result of them and the changes will likely have an impact far beyond the pretrial process. Bail reform could be a useful tool in the largely unsolved crisis of U.S. mass incarceration.⁵ Recognizing the effect that bail reform could have on mass incarceration also has important political and economic

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implications for future reform efforts and the scholarly literature in these areas.

The U.S. has the highest incarceration rate in the developed world, and the causes and ramifications of mass incarceration are the subject of intense study.⁶ It is also increasingly recognized that the high rates of pretrial detention in many jurisdictions, often linked to the use of money bail, are unjust, expensive, and often counterproductive.⁷ But, so far, the links between money bail, pretrial detention, and mass incarceration have been largely unexplored.⁸ The bail system plays an important role in keeping the wheels turning in the larger criminal justice bureaucracy, which, as Rachel Barkow notes, was built up when violent crime rates were high.⁹ This system remains stubbornly in place, causing the U.S. to

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incarcerate more offenders, including many charged with drug and similar non-violent offenses, despite the significant social and financial costs of the system.¹⁰

Most convictions obtained in the U.S. are misdemeanor convictions,¹¹ which result in fees and often incarceration.¹² Moreover, a prior misdemeanor conviction followed by additional convictions can lead to a felony conviction and longer sentence.¹³

The vast majority of misdemeanor and felony convictions are obtained through plea bargains.¹⁴ An under-appreciated driver of this chain of events is the U.S. approach to bail, which generates high pretrial detention rates and plays a significant role in incentivizing quick pleas.¹⁵ The effect of bail on plea bargains and incarceration is not surprising, although its magnitude may be.

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Defendants who are detained pretrial are highly motivated to agree to a plea.¹⁶ Each day in jail is a missed day of work and time with family, and each day increases the likelihood of losing employment and housing.¹⁷ pretrial detention also lowers the likelihood of winning at trial.¹⁸ Further, many defendants detained pretrial are charged with relatively low-level crimes with short sentences, and when pretrial detention counts toward their sentence, these defendants serve only a few days post-conviction.¹⁹ Thus, a plea often results in a quicker release than contesting the case, whatever the ultimate outcome.

Released defendants do not face the same pressures as detained defendants, and they are in a better position to resist unfavorable plea offers, file motions to suppress, seek dismissal, and, in rare cases, proceed to trial.²⁰ Releasing more defendants pretrial, then, would lead to more pretrial motions, lengthier plea negotiations, and more trials and would thus raise the cost—in the form of prosecutors, public defenders, and judges—of convictions and imprisonment.²¹ pretrial detention, which substantially limits the number of released defendants in the system as a whole, thus allows prosecutors to charge more people with crimes.²² And an increase

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in the percentage of arrestees charged by prosecutors is, according to a leading scholar, the "primary driver" of mass incarceration.²³ Accordingly, if we release significantly more defendants pretrial as a result of meaningful bail reform, we will have to either spend more on prosecutors and judges²⁴ or convict fewer people and punish them less severely, which creates a complex scenario for reform.

In addition to inducing quick, inexpensive guilty pleas from defendants unable to post bond, money bail also plays a more subtle role in sustaining our high incarceration rate. If more politically better-represented wealthy and middle-class defendants were detained,²⁵ and thus subjected to some of the same pressures to plead guilty as indigent defendants, there would, in all likelihood, be more demand for reform. Money bail, by its very nature, discriminates based on wealth, and thus provides a built-in sorting mechanism—politically weak, low-income defendants are pushed into the quick-plea process, while wealthier defendants are able to obtain release and practical access to the more robust process that it affords.²⁶ Bail, as a sorting mechanism, is a key yet under-recognized facet of a system that Alexandra Natapoff describes as a penal pyramid, where, for the elite at the top, the criminal "process is sensitive to evidence, transparent, accountable, and hypervisible,"²⁷ but for the bottom of the pyramid, these types of

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protective rules have little relevance because outcomes "are driven by institutional practices and inegalitarian social relations."²⁸

The inherent discrimination of money bail is exacerbated by many jurisdictions' reliance on fixed bail schedules, which set a specific bond amount for different charges and are often blind, in practice, to defendants' ability to pay.²⁹ Additionally, both state and federal statutes direct judges in the pretrial process to consider factors that implicitly benefit wealthy defendants.³⁰ Even portions of the statutes ostensibly designed to protect low-income defendants from pretrial detention primarily benefit the wealthy, who can hire attorneys to make complex procedural arguments against pretrial detention.³¹ Because wealthier defendants more...