BIAS AND GUILT BEFORE INNOCENCE: HOW THE AMERICAN CIVIL LIBERTIES UNION SEEKS TO REFORM A SYSTEM THAT PENALIZES INDIGENT DEFENDANTS.

• Author: White, Candace

For decades, the United States has debated the concept of a money-bail system, which has been documented to disenfranchise individuals of lower socioeconomic statuses. (1) Because the accused's financial status is often not assessed during bail and arraignment hearings, judges often set bail in excess of the defendant's financial means. (2) As a result, individuals who have not been convicted comprise sixty percent of jail populations, (3) and in cases where bail is set moderately low, "at $500 or less, as it is in one-third of nonfelony cases--only 15 percent of defendants are able to come up with the money to avoid jail." (4)

In an attempt to rectify discriminatory practices, the United States, under the Obama administration, sought to provide guidance on criminal justice fines and fees, (5) however, these instructions were repealed under the Trump administration. (6) At the local level, state lawmakers vastly differ in their perceptions of how to implement successful, nondiscriminatory bail procedures while also upholding the need for community safety, especially in cases where the defendant has been accused of committing a violent crime. (7) Several states, including New Jersey, Colorado, Kentucky. Alaska, and New York, have implemented some level of hail reform, with New Jersey and Alaska having entirely repealed their cash bail systems. (8) In lieu of cash bail systems, proponents of reform are turning to risk assessment tools, which rely upon algorithms to determine the predicate assessment of whether a defendant will return to court while also assessing the threat level that allowing high-risk defendants to be remanded poses to the community-at-Jarge. (9) Such tools have flourished despite criticisms that the algorithms focus on racially motivated and biased factors, including the zip code in which the accused resides and the socioeconomic status of the offender, thus, rebranding and repackaging age-old discriminatory criminal justice tactics. (10)

On December 11, 2017, the American Civil Liberties Union (ACLU) announced through its Campaign for Smart Justice that it would begin advocating for states and the federal government to "end money bail and eliminate wealth-based pretrial detention." (11) The campaign's ultimate goal is to "combat racial disparities in the criminal justice system by challenging the injustices that have helped make America the world's largest incarcerator." (12) In its press release detailing the initiative, the ACLU asserted, "The money bail system was originally designed to ensure that people returned to court as their case progressed. It has since transformed into a system that targets those who cannot pay bail... ." (13) Because the current system of bail is predicated upon discriminatory policies and practices, hundreds of thousands of indigent arrestees remain incarcerated each day; a systematic injustice that the ACLU seeks to reform through impact litigation and lobbying efforts advocating for the elimination of the cash-bail system."

Part I of this Note assesses the concept of bail and discrimination. Part II evaluates modern bail practices and reform initiatives at the federal and state levels. Part III discusses the influence of the ACLU's position on state bail reforms initiatives and discusses the dichotomy between community needs recognized by state-level chapters of the organization and the varying goals of the national level chapter. This Note argues that to implement meaningful reform, states must work alongside groups such as the ACLU to either structure reform efforts to the individual needs of communities or eliminate bail systems, while simultaneously working to dismantle systemic issues of racism inherent in the American criminal justice system. While acknowledging the rise of empirical data analysis tools in jurisdictions implementing reform, this Note urges that risk assessment tools must be implemented only as a last resort and with ample safeguards to dismantle discriminatory and punitive pretrial punishments.

1. BAIL AND RACIAL DISCRIMINATION

   1. Wliat Is Bail in the United States and How Does It Function?

      Bail in the United States refers to "the pretrial release of a criminal defendant after security has been taken for the defendant's future appearance at trial." (15) Bail has "been the answer of the Anglo-American system of criminal justice to a vexing question: what is to be done with the accused, whose guilt has not been proven, in the 'dubious interval,' often months long, between arrest and final adjudication." (16) While bail is not intended as a punishment in itself, it does "securfej a defendant's agreement to abide by certain conditions and return to court." (17)

      At a bail hearing, judges must consider numerous factors to establish the monetary value of bail to be imposed. (18) These considerations include "the severity of the alleged offense, the likelihood that the defendant will commit additional crimes after being released, and the chances that the defendant will flee the jurisdiction before trial." (19) Additional considerations include whether the principal has "community ties, [a prior] history relating to drug or alcohol abuse, [a] criminal history, [or a] record of [missed] court appearances." (20) Based upon these considerations, the judge is permitted to release the defendant on their own recognizance, set a personal bond, issue bail with specific terms of release, or deny bail outright. (21) Releasing the defendant on their recognizance allows the defendant to be "released from jail in exchange for signing an agreement promising to return to court and abide by other conditions." (22) When a judge permits the defendant to sign a personal bond, the defendant may be released after signing a bond stating "that he or she will be liable for criminal, and in some cases civil. penalties if he or she fails to appear in court." (23) If the judge sets bail with specific terms of release, the defendant may be released "by posting bail in the amount set by the court, either by paying it directly or obtaining a surety bond through a bail bond company." (24) Finally, if the judge denies bail outright, the defendant is required to remain incarcerated. (25)

      In cases where bail is imposed, judges are not required to evaluate the financial status of the accused, which results in the imposition of bail amounts that far exceed the accused's financial abilities. (26) To account for this difference, bail bond companies will remunerate the full amount of bail for a defendant in exchange for a ten-to-twenty percent nonrefundable fee. (27) Where the defendant returns to court without issue, which occurs in more than seventy-five percent of cases, (28) the amount paid for the defendant's pretrial release is refunded to the bondsman in full. (29) The percentage paid by the defendant to the bondsman, however, is not refunded. (30) As a condition of being released on a bail bond, a bond company is required to sign "a contract, known as a surety bond, in which it agrees to be liable for the full bail amount if the defendant fails to appear in court or otherwise forfeits his or her bail." (31) Because the bond company becomes fully liable for a defendant's nonappearance, it can "require the defendant to check in on a regular basis, or even [require that the defendant] consent to be monitored by the company." (32)

   2. How Does Bail Discriminate on the Basis of Race?

      In principle, bail was developed to ensure an individual accused of a crime returned to court. (33) However, in practice, bail is nothing more than an age-old discriminatory policy wrapped in the guise of community safety. (34) Each day more than sixty percent of jail populations are composed of individuals who have yet to be convicted, and these individuals are often held for nonviolent misdemeanor charges. (15) While it is undeniable that bail "presses harder on the poor" who are unable to post even low amounts of bail, issues of racial bias also exist within the bail system. (36) Courts throughout the United States "set significantly higher bail amounts for black individuals than they do for white individuals, which is only compounded by the likelihood that people of color are more likely to serve pretrial time for accused crimes." (37) In fact, "nearly every study on the impact of race in bail determinations has concluded that African Americans are subjected to pretrial detention at a higher rate and are subjected to higher bail amounts than are white arrestees with similar charges and similar criminal histories." (38)

      The Supreme Court has described the pretrial process as "perhaps the most critical period of the proceedings," (39) so the impact of race in bail applications is quintessential as studies directly link outcomes on conviction rates and sentencing decisions to pretrial detention status. (40) "When bail and pretrial detention seem too costly, a quick plea can look like a path back to your old life." (41) Accepting a plea deal, regardless of the defendant's guilt, innocence, or the strength of the prosecution's case, becomes appealing where an individual fears losing their job, hurting their family, or simply fears incarceration. (42) "By extension, racial differences in bail decision-making and pretrial detention may then impact the racial composition of incarcerated populations." (43)

      When evaluating how racial disparities come to exist in the context of bail, researchers have also found that for each correlation between race and all pretrial outcomes, black detainees "were less likely to be released on their own recognizance than white defendants" and black detainees "ages 18 through 29 received significantly higher bail amounts than all other types of defendants." (44) Another study specifically noted that bail amounts for black arrestees tend to be $9,923 higher on average than for white defendants. (45) The refusal to release black individuals on their own...