UNDOING THE BAIL MYTH: PRETRIAL REFORMS TO END MASS INCARCERATION.

• Author: Rahman, Insha

Introduction 846 I. A Brief History of Money Bail 852 A. The Role of Money in Securing Pretrial Appearance 853 B. Historical Context for Risk to Public Safety in the Pretrial Decision 855 II. Problems with Money Bail 857 A. How History Informs Bail Reform Efforts 857 B. Does Money Bail Even Matter to Court Appearance? 859 C. The Problem of Predicting Violence and the Resort to Pretrial Detention 862 D. The Messiness of Considering Public Safety Within a Money Bail System 865 III. Ending Mass Incarceration by Reforming Bail 866 A. California and the Cautionary Tale of Senate Bill 10 868 B. New York and the Hope of a Narrower Standard of Detention and Public Safety 871 Conclusion: A Call for Statutory Reform Elsewhere 875 INTRODUCTION

Your Honor, Mr. Jones will come back to court. He's lived in the same apartment with his family for years, works part-time, and is putting himself through school. He is not a flight risk. I ask that you release him and allow him to return to court on his own recognizance. In five years as a public defender in the Bronx, I gave that pitch-or a variation of it--hundreds of times, trying to convince judges not to set bail on people I represented. The arraignment courtroom, where people were first brought within twenty-four hours of an arrest, was nothing short of chaos. (1) Within minutes of meeting a client, based on whatever little information I could gather in short order, I would appear in front of a judge to make a case for release. Sometimes I had strong facts on my side, such as a mother or family member in the courtroom to demonstrate that this person had ties to the community and wasn't a flight risk. Other times, especially in cases where the person was homeless, or had multiple prior arrests, I had a lot less to work with.

Why did this matter so much? Because, based on little information and no time to give it thorough consideration, the judge would make a decision about bail--a decision with tremendous legal and life consequences. (2) I would watch a judge set bail and wonder: does the judge think my client can afford this bail, and intends that they be released? Or does the judge know that posting bail is beyond their means, and intends for this person to remain in jail?

The arraignment decision to set bail or release someone dictates not only the course of that person's case, but also of his or her life. (3) This is no hyperbole. When people are released, they are able to keep their jobs, go to school, be at home with their children and families, and help prepare in their defense. In short, they have a fighting chance at that much-hallowed presumption of innocence and the right to a day in court. If they are in jail, it is infinitely more likely that they will take a plea before seeing any evidence, often without the opportunity to properly investigate and consult with their family, loved ones, and their attorney about what to do. Over the years, I watched people I represented plead guilty not necessarily because they were guilty, but because they couldn't afford their freedom and taking a plea would get them out of jail faster than maintaining their innocence.

Those bail decisions and their life-altering consequences are not unique to that Bronx courthouse or even to New York City. It is a massive, nationwide problem that occurs every day across thousands of courtrooms in this country. (4) Bail amounts of $5,000, $1,000, and sometimes even sums as low as $250 or $100, routinely stand in the way of a person's freedom. (5) At arraignments, a judge has three options: to release someone on their own recognizance to come back to court without any bail necessary, to set bail, or, in cases involving serious charges or a warrant or hold, to remand the person to jail pending their next court date. (6) In forty-nine states and the federal system, judges can legally set money bail or remand, also known as preventive detention, if: the person is considered a risk in terms of failure to appear at future court dates, or the person is considered a risk to public safety, or both. (7) In New York, judges can legally consider only failure to appear. (8)

The myth that perpetuates the money bail system--that having a financial stake in one's case will guarantee that people come back to court and mitigate any public safety concerns--is unfounded and unsupported by the reality of how money bail works. In addition to anecdotes and stories, there is a growing body of evidence that money bail does not successfully fulfill its intended purpose. For one, the vast majority of people appear for their court dates without any financial stake in their case. In some jurisdictions, people appear in court at higher rates when released on nonfinancial conditions than on money bail. (9) Second, the way money bail is used is fundamentally discriminatory and biased. It disproportionately impacts people who are poor and unable to afford the price of their freedom. (10) More insidiously, it disproportionately impacts people of color, who are more likely to have higher bail set than whites and less likely to be able to afford bail based on historic generational disparities in wealth. (11) The particular impact of money bail on women flies below the radar in most bail reform conversations, but research has shown that women in the justice system have less wealth than men and disproportionately bear the burden of paying bail for their loved ones. (12) Finally, the discriminatory use of money bail leads to the deeply troubling overuse of jail. A fundamental goal of bail reform must be to simply have fewer people in jail, given jail's deleterious impacts on a person's health, safety, and well-being. The number of deaths in jail each year across the U.S., especially within the first few days of a person's admission, is staggering. This is the same period of time that people are often scrambling to make bail. Sandra Bland, arrested and booked into jail on an alleged traffic infraction, was waiting for family to pay $500 to a bail bondsman when she died in a Texas jail cell three days later. Within only one year following Sandra Bland's death, at least 810 additional people lost their lives in jail. (13)

In recent years, the call to end money bail has taken on an urgency and fervor unseen before in the fight to end mass incarceration. (14) Without a doubt, there is growing recognition that money bail itself is a relic of an antiquated pretrial system that perpetuates inequity, bias, and oppression. (15) Justice reform advocates and organizers have made eliminating money bail a central campaign in the fight to end mass incarceration and abolish jails and prisons. (16) In response to advocacy, litigation, and public pressure, some jurisdictions across the country have overhauled laws to lessen or eliminate the use of money bail entirely. (17) At the local level, rural and urban counties as well as cities have enacted policies to do the same. (18) Yet in all this pretrial justice momentum to end money bail, two fundamental premises of our country's bail system have eluded any real scrutiny. The first is the idea that "failure to appear" is, by itself, a justifiable and valid basis for depriving someone of their pretrial freedom. Another important standard that is ripe for reform is the definition of who and what ought to be considered a risk to public safety, and when detention can be imposed to manage public safety concerns.

This Article argues in favor of three key reforms to bail. One is to end money bail entirely. (19) This proposition is hardly novel or controversial among pretrial justice advocates. The second reform is to eliminate risk of failure to appear entirely as a basis for imposing detention. To a limited degree, some jurisdictions have embraced this reform by eliminating both bail and jail on very low-level offenses, but I argue that this reform should be given real consideration on all levels of charges--both minor and serious--given what the research tells us about pretrial court appearance. The third recommendation is one that is truly novel and has not yet been broached in any jurisdiction: to redefine what constitutes a risk to public safety as only conduct that involves a specific threat to a person's physical safety, and to justify pretrial detention based on this factor only after an individualized, fact-specific hearing has been held on the potential threat of danger. This reform in particular has received relatively little attention in the bail reform debate, despite its potential to transform the pretrial process.

In subsequent sections, I provide a brief history of the money bail system and the goals of court appearance and public safety. I then turn to the problems of the current money bail system and challenge the premise that money bail mitigates either failure to appear or public safety concerns. I provide an account of public safety and bail, highlighting the ethical and practical problems with predicting future risk to public safety, and how these concerns are compounded by the use of money bail. Finally, I offer solutions--and cautionary advice --based on lessons learned from California and New York, the two most prominent examples of bail reform in recent times.

1. A BRIEF HISTORY OF MONEY BAIL

   For centuries, the purpose of money bail was to ensure pretrial court appearance. (20) Yet, given research that suggests money has little impact on court appearance, should this premise still stand? What if courts, judges, and magistrates no longer use either money bail or detention to manage risk of failure to appear? And, with the changes in the law in recent decades that allow judges to consider risk to public safety as well as failure to appear, should the purpose of detention only be to manage and mitigate danger? Put another way, if a person poses no danger or risk to public safety, regardless of charge, should they always be released? I would argue yes, and a growing number...