The State “must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer” to ensure that “prolonged detention based on incorrect or unfounded suspicion may not unjustly imperil” a suspect’s life, liberty, and property interests.
The United States Supreme Court in County of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991), held that immediate release from custody is required for anyone not seen by a judge within 48 hours of a warrantless arrest, and 72 hours of an arrest accompanied by a warrant. Despite this great protection, the highest Court has not so clearly spoken concerning the length of detention allowed following a probable cause hearing and before the commencement of trial. Current pretrial detention procedures are plagued by several problems including overuse and impractical use of monetary bonds, the economically discriminatory practices employed when issuing monetary bonds, and the unconscionable collateral consequences of elongated pretrial detention.
The cash-bail system has inequitable effects on low-risk offenders, whose lives are subsequently disrupted because of their inability to post bail despite their low-risk status or nonviolent offense. Nonviolent, low-income people as well as minorities tend to face higher bail amounts on average than white defendants with similar charges. Those who are unable to post bail are adversely affected in their personal lives and face significant losses including employment, access to benefits, custody of children, and housing. Pretrial detention also limits an offenders’ ability to effectively participate in their own criminal defense, often leaving them feeling pressured to take plea bargains, where they admit guilt to a lesser offense than the one they may or may not have actually committed.
Few think about the costs associated with pretrial detention. For the roughly half a million detainees awaiting trial, pretrial detention costs more than $38 million a day or $14 billion annually to U.S. taxpayers. These numbers don’t include the collateral impact the cash-bail pretrial system has on communities, the justice system, and individuals, which rounds to about $140 billion per year. Are these costs truly necessary?
Some states and districts have taken steps to repeal and replace their cash-bail systems. Hudson County, New Jersey has a Central Judicial Processing Court (CJP) that allows more defendants to be released from CJP with no monetary bail. Defendants deemed “high risk” can be released on a combination of monetary bail and supervision or are held without bail. Persons who are held without bail must have a hearing within three to five days. The state then must establish probable cause through a witness and/or evidence. No more than 90 days may pass from the time of the arrest to the time of an indictment for those awaiting trial in custody. No more than 180 days from the time of indictment to the start of trial, and no more than two years for the entire process. Defendants are given a date for an Early Disposition Conference during which a prosecutor provides the defendant with the best possible plea offer. To maximize efficiency CJP is open on Saturdays.
New Jersey, California, the District of Columbia, and Cook County, Illinois all have or are in the process of implementing no bail pretrial release systems that use risk assessments to determine whether or not a defendant will be released. Under the new system, New Jersey uses a risk assessment score that is provided within 48 hours of an arrest to determine whether defendants will be released on their own recognizance or with some non-monetary conditions such as curfew or GPS monitoring. If detained until trial, a speedy trial component will be initiated. Since 1992 Washington, DC has used a cashless bail system that interviews defendants extensively and drug tests them through DC’s Pretrial Services Agency prior to their initial court appearance. 90% of the people arrested in DC are released and 89% make their court appearance. DC saves at least $398 million a year by utilizing supervision programs for defendants instead of jails.
The U.S. Bureau of Justice Statistics finds that 95% of the jail population growth since 2000 has stemmed from an increase of inmates held in lieu of bail. Currently lawmakers in California, Maryland and New York have legislation pending that would remake their states’ cash bail systems. New York, in particular, has proclaimed that it will close Rikers Island, the largest correctional facility in New York, within the next ten years. Rikers is the facility where Kalief Browder, who was 16 at the time, was detained for more than 1,000 days because he was unable to post a $3,000 bail bond. At Rikers, Browder endured violent assaults and spent nearly 2 years in solitary confinement. Devastatingly, Browder committed suicide upon release in 2015. Another life lost to unnecessary detainment is Sandra Bland, who was jailed because she was unable to make bail and died in police lockup. The Huffington Post has estimated that after Bland’s death more than 815 people died in jails and police lockups, to which many were held because they were unable to post bail. According to a Prison Policy Initiative report, there are 443,000 people in local jails who haven’t been convicted. 67% of those who have not been convicted are in local correctional facilities for nonviolent crimes. Specifically, 25% of those awaiting trials are incarcerated for drug related crimes.
Bland and Browder’s stories, among dozens of others, sparked national movements. In particular, the #EndMoneyBail campaign, led by the Color of Change group, targets the bail bond industry’s exploitive system. Awareness and grassroots efforts have resulted in the Department of Justice’s determination that the country’s bail bond system is unconstitutional as well as federal action as in the case of Congressman Ted Lieu’s (D-CA) No More Money Bail Act of 2017, a bill that seeks to eliminate the use of money bail.
Pretrial Justice: How Much Does it Cost? – The Pretrial Justice Institute 2017
Conte, Michaelangelo. “Bail reform will change how courts work in Hudson.” Nj.com (2016)
How D.C. court reforms save $398 million: Impact 2016: Justice For All, Cleveland, May 16, 2016.
Mass Incarceration: The Whole Pie 2017, The Prison Policy Initiative, March 14, 2017. Pete Wagner and Bernadette Rabuy provide clarity about the U.S. prison population.