Bail in Justice: Innocence, Indigence and Incarceration

The number of innocent people in post-conviction confinement is counted in the thousands,[1] the pre-trial population of the unconvicted is in the millions.[2] Every accused has constitutional rights to liberty, dignity and innocence,[3] and yet, confinement often arrives before conviction. Money bail has the unfortunate effect of monetizing personal liberty and alchemizing human beings into negotiable instruments. This is the slippery slope of criminal justice, the erosion of liberty and due process.[4] So it is that excessive bail bars the way to fully realize constitutional rights and increases the risk of wrongful conviction.[5]

Bail is the gateway to the first incarceration,[6] where liberty and dignity are adjudicated at arraignment.[7] It invokes constitutional[8] and statutory rights and standards of justice: indigency, risk of flight,[9] preventive detention (risk to public safety),[10] equal protection (apropos of race, ethnicity, citizenship status, gender and wealth),[11] right to counsel,[12] sufficiency of charging instruments,[13] competency to stand trial, speedy trial,[14] conditions of confinement[15] (including shackling,[16] medical care,[17] mental health care,[18] overcrowding,[19] and death in custody),[20] punishment without conviction (excessive confinement, overdetention and solitary),[21] as well as abuse of discretion.[22]

When the accused is unable to pay for liberty, every aspect of their lives is dictated by the state.[23] Eventually, the pain of confinement becomes the grist of plea bargaining[24] and decides the outcome of cases.[25] And the consequences of detention can be unending.[26] So it is that the current system of bail punishes poverty, race, innocence and the right to present a defense.[27] And with the advent of risk assessment, attention must be paid to the currency and accuracy of data that will overtake the paradigm of cash bail.[28]

It should also be noted that the topic of procedural detention is a rubric applicable at many stages of the criminal process: fines, fees, surcharges, debts,[29] court costs[30] (including payment for assigned counsel and confinement),[31] restitution, child support, bench warrant, bail jumping, arraignment on indictment, pre-sentence bail, material witness order, contempt of court, orders of protection, extradition, immigration proceedings,[32] stay and release pending appeal, bail pending re-trial, and finally, forfeiture and remission.[33]

Present efforts to improve pretrial release and detention practices have inspired some legislative and policy changes as well as bail funds and advocacy programs.[34] This bibliography covers noteworthy legislation, court decisions, reports and guides, news articles and other sources concerning bail reforms and practices.

  1. PRIMARY SOURCES

Standards, Policies and Resolutions

ABA Standards for Criminal Justice: Pretrial Release (3rd ed. 2007) (annotated)
“Standard 10-1.1 Purposes of the Pretrial Release Decision: The purposes of the pretrial release decision include providing due process to those accused of crime, maintaining the integrity of the judicial process by securing defendants for trial, and protecting victims, witnesses and the community from threat, danger or interference. The judge or judicial officer decides whether to release a defendant on personal recognizance or unsecured appearance bond, release a defendant on a condition or combination of conditions, temporarily detain a defendant, or detain a defendant according to procedures outlined in these Standards. The law favors the release of defendants pending adjudication of charges. Deprivation of liberty pending trial is harsh and oppressive, subjects defendants to economic and psychological hardship, interferes with their ability to defend themselves, and, in many instances, deprives their families of support. These Standards limit the circumstances under which pretrial detention may be authorized and provide procedural safeguards to govern pretrial detention proceedings.” See also Pretrial Release (blackletter).

Handbook of International Standards on Pretrial Detention Procedure (ABA Rule of Law Initiative 2010)
“Drawing on the American Bar Association Rule of Law Initiative’s (ABA ROLI’s) 20 years of experience providing technical legal assistance to promote the rule of law in more than 70 countries worldwide, ABA ROLI has developed the Handbook of International Standards on Pretrial Detention Procedure to serve as a reference for members of the legal community interested in ensuring their country’s compliance with international norms and best practices for pretrial detention. This handbook compiles standards and best practices on pretrial detention from all over the globe in a convenient format, with the goal of providing a framework for legislative and procedural reforms. A second handbook focuses on international standards on sentencing procedure. These handbooks will find their greatest utility in countries where ABA ROLI’s Detention Procedure Assessment Tool (DPAT) has been implemented in order to analyze all aspects of the country’s detention regime and identify the areas in which the country is out of compliance with internationally-accepted norms and best practices for detention; the handbooks will serve as an invaluable tool for the local legal community to design and implement reforms targeting the problem areas identified in the DPAT. However, the handbooks can also be used on their own by anyone interested in learning about the international standards relevant to detention procedure.”

New York State Pretrial Release Standards (NY DPCA 2007)
“These standards for Pretrial Release Services are based upon the laws of New York State, which direct the use of pretrial release in accordance with the defendant’s likelihood of appearance in court and his/her capacity to satisfy other court-imposed conditions of release. These Standards define how pretrial services should operate in providing judges with an alternative to the use of money bail or other forms of financial surety to ensure the defendant’s appearance in court.”

Performance Standards and Goals for Pretrial Diversion/Intervention (NAPSA 2008)
“The Introduction of the 1995 edition of the Pretrial Diversion Standards begins with the question, “what is pretrial diversion?” Finding a universal definition for pretrial diversion and intervention programming remains a challenge due to the broad variations and types of programs across the country. The original definition as published in the 1978 Standards still has value in setting the parameters for diversion: “it is a strategy designed to offer a non-punitive case processing to selected individuals charged with a crime.” These Standards begin with that foundational definition but expand on it to be more inclusive of the variety of programs which have emerged since those first Standards were promulgated. In the past, the definition and purpose of diversion/intervention programs were included in the Introduction of the Standards. The authors of the 2008 revision believe that the definition and stated purpose are so important as to have their own Black Letter Standard and Commentary apart from the Introduction. Both are now included in the new Part I.

Policy Statement on the Predatory Collection of Costs, Fines and Fees in America’s Criminal Courts (NAPD 2015)
“The collection of costs, fines, and fees in too many criminal courts across the United States are predatory in nature and an economic failure. These predatory practices impact poor people in catastrophic and life altering ways and are disproportionately levied against people of color.”

Pretrial Release and Limited Use of Financial Bond (NACDL Resolution 2012)
“The National Association of Criminal Defense Lawyers believes pretrial liberty must be the norm and detention prior to trial the carefully limited exception. “Unless [an accused’s] right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle would lose its meaning.” To reinforce this standard, NACDL endorses the following policies regarding pretrial release. In conjunction with the right of all persons accused of crime to be effectively represented by counsel at the accused’s first appearance when a judicial officer informs the accused of the charges and orders pretrial release or bond, these policies ensure the consistent, fair and equal treatment of all accused individuals.”

Pretrial Release Policy Statement on Fair and Effective Pretrial Justice Practices (ACCD 2011)
“This American Council of Chief Defenders Policy Statement calls for a new commitment by all criminal justice stakeholders to ensure fair and appropriate pretrial release decision-making, and outlines key action steps for each pretrial actor.”

Standards on Pretrial Release (NAPSA 3rd ed. 2004)
“The Standards are intended to be aspirational—to provide a framework for a well-functioning system of pretrial decision-making and for effective monitoring and supervision of defendants on pretrial release. Because American court systems vary widely in structure and operational practices, policymakers and practitioners will need to consider how the Standards can best be adapted for use in their own jurisdictions. For example, in a “two-tier” system for handling felony charge cases, issues related to the defendant’s custody status are typically addressed first in a limited jurisdiction court (at the defendant’s first appearance following arrest) and again at the formal arraignment on a felony indictment or information in the general jurisdiction court. The basic principles applicable to release/detention decision-making are the same, however, with respect to the processes that take place in each court. The commentary accompanying specific Standards addresses unique issues that may arise in circumstances such as these.”

Legislation

United States: Immigration Courts Bail Reform Act, H.R.6097
“This bill amends the Immigration and Nationality Act to eliminate the minimum bond amount needed to release a detained alien.” See also Poverty Is Not a Crime, So Why Are People Being Trapped in Immigration Detention for Being Poor?, ACLU, Sept. 21, 2016.

United States: No Money Bail Act of 2017, H.R. 1437
“This bill amends the Omnibus Crime Control and Safe Streets Act of 1968 to make ineligible for funding under the Edward Byrne Memorial Justice Assistance Grant (JAG) program a state with a bail system that uses payment of money as a condition of pretrial release in criminal cases. The Department of Justice must reallocate such state’s JAG funding among eligible states. Additionally, the bill prohibits payment of money as a condition of pretrial release in any federal criminal case.”

United States: Pretrial Integrity and Safety Act of 2017, S.1593
“To provide grants to States and Indian tribes to reform their criminal justice system to encourage the replacement of the use of payment of secured money bail as a condition of pretrial release in criminal cases, and for other purposes.”

Colorado: CO Rev Stat § 16-4-101 to 16-4-115 (2016) and H.B. 13-1236
“On May 11, 2013, Colorado Governor John Hickenlooper signed into law H.B. 13-1236, which substantially alters the way judges are to administer bail in Colorado. It is the first major overhaul of the pretrial bail statute since 1972, and incorporates three recommendations passed by the Colorado Commission on Criminal and Juvenile Justice (CCJJ). Those three recommendations are: (1) “Implement Evidence Based Decision Making Practices and Standardized Bail Release Decision Making Guidelines” (including the use of empirically developed risk assessment instruments); (2) “Discourage the Use of Financial Bond for Pretrial Detainees and Reduce the Use of Bonding Schedules; and (3) “Expand and Improve Pretrial Approaches and Opportunities in Colorado.”” Best Practices in Bond Setting: Colorado’s New Pretrial Bail Law (Revised).

New Jersey: Criminal Justice Reform Act (CJRA), NJ Rev Stat § 2A:162-15 to 162-26 (2014) (eff. Jan. 1, 2017) and Chp. 31.
“The provisions of sections 1 through 11 of P.L.2014, c.31 (C.2A:162-15 et seq.) shall be liberally construed to effectuate the purpose of primarily relying upon pretrial release by non-monetary means to reasonably assure an eligible defendant’s appearance in court when required, the protection of the safety of any other person or the community, that the eligible defendant will not obstruct or attempt to obstruct the criminal justice process, and that the eligible defendant will comply with all conditions of release, while authorizing the court, upon motion of a prosecutor, to order pretrial detention of the eligible defendant when it finds clear and convincing evidence that no condition or combination of conditions can reasonably assure the effectuation of these goals. Monetary bail may be set for an eligible defendant only when it is determined that no other conditions of release will reasonably assure the eligible defendant’s appearance in court when required.” See also Criminal Justice Reform Information Center (NJ Courts).

New Mexico: N.M. Ct. R. 6-401 Pretrial Release (amended 2017)
“Committee Commentary. –This rule provides “the mechanism through which a person may effectuate the right to pretrial release afforded by Article II, Section 13 of the New Mexico Constitution.” State v. Brown, 2014-NMSC-038, 37, 338 P.3d 1276. In 2016, Article II, Section 13 was amended (1) to permit a court of record to order the detention of a felony defendant pending trial if the prosecutor proves by clear and convincing evidence that the defendant poses a danger to the safety of any other person or the community and that no release condition or combination of conditions will reasonably ensure the safety of any other person or the community; and (2) to require the pretrial release of a defendant who is in custody solely due to financial inability to post a secured bond. This rule was derived from the federal statute governing the release or detention of a defendant pending trial. See 18 U.S.C. § 3142. This rule was amended in 2017 to implement the 2016 amendment to Article II, Section 13 and the Supreme Court’s holding in Brown, 2014-NMSC-038. Corresponding rules are located in the Rules of Criminal Procedure for the District Courts, see Rules 5-401 NMRA, the Rules of Criminal Procedure for the Metropolitan Courts, see Rule 7-401 NMRA, and the Rules of Procedure for the Municipal Courts, see Rule 8-401 NMRA.”

Broad Push for Pretrial Justice Reforms from the States, Boston Globe, Aug. 8, 2017
“Nationwide, 500 new state laws in the past five years have addressed the pretrial side of criminal justice, an area every state has tackled in one way or another, according to the National Conference of State Legislatures.”

Matrix of State Bail Laws (PJI 2010)
Table of state bail laws organized into the following categories: “Are Courts Required to Impose the Least Restrictive Conditions of Bail?” “Are Courts Required to Consider Community Safety When Imposing Bail?” “May Courts Detain Defendants for Charges Other Than Capital Offenses?”

“Model” Bail Laws: Re-Drawing the Line Between Pretrial Release and Detention (Center for Legal and Evidence-Based Practices 2017)
“This paper is designed to help persons craft and justify language articulating who should be released and who should be eligible for detention in a purposeful in-or-out pretrial system through a study of the history of bail, the fundamental legal principles, the pretrial research, and the national standards on pretrial release and detention. This paper is likely useful to all persons seeking answers to questions surrounding pretrial justice today. But it should be especially useful to those persons who are taking pen to paper to re-write their laws to determine whom to release and whom to potentially detain pretrial – essentially, to re- draw the line between purposeful release and detention. Center for Legal and Evidence-Based Practices http://www.clebp.org/.”

Pretrial Policy: State Laws (NCSL)
“State legislatures consider and enact laws that address all aspects of pretrial policy, including release eligibility, conditions of release, bail, commercial bail bonding and pretrial diversion. These legislative policies have an important role in providing fair, efficient and safe pretrial practices carried out by law enforcement and the courts.” See also Pretrial Policy Law Database (NCSL).

Litigation

Alabama: Varden v. City of Clanton, No. 15-cv-00034 (M.D. Ala. Sept. 14, 2015)
“On January 15, 2015, an arrested individual who was unable to pay her bail filed this class-action lawsuit in the U.S. District Court for the Middle District of Alabama. Represented by the non-profit Equal Justice Under Law and by private counsel, the plaintiff sued the City of Clanton under 42 U.S.C. § 1983. Her complaint alleged that she was jailed because she was too poor to pay a small amount of bail money as automatically required by the City’s bail schedule. Those able to pay the amount of the bond always obtained immediate release. Those unable to pay were required to wait in jail until the next court date, typically held on Tuesday afternoons. The bail schedule required payment upfront and provided no option to secure release on recognizance or by an unsecured bond. The plaintiff claimed this violated the First, Eighth, and Fourteenth Amendments; she sought declaratory, injunctive and compensatory relief. The case was assigned to Judge Myron Thompson.

On February 13, 2015, the U.S. Department of Justice filed a statement of interest in support of the plaintiff. The statement pointed out that the federal Bail Reform Act requires federal judges and magistrates to conduct an individualized analysis of each defendant prior to ordering pretrial detention. DOJ argued that this is constitutionally required–that fixed-sum bail systems are unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. On April 3, 2015, the plaintiff filed her first amended class-action complaint. Subsequently, the defendants moved to dismiss the case for failure to state a claim. However, before the court could rule on the motion, the parties settled the case, except for the issue of damages. The defendants agreed to a modified bail schedule and to hold a hearing within 48 hours for those unable to pay their bail.

Accordingly, on May 14, 2015, the court denied all pending motions without prejudice and cancelled all pending hearings. On September 14, 2015, the court (Judge Myron H. Thompson) issued an opinion and order granting final judgment and adopting the settlement agreement as an order of the court. The court retained jurisdiction for three years to enforce the terms of the settlement and to resolve the matter of attorney’s fees. 2015 WL 5387219 (M.D. Ala. Sept. 14, 2015).” See Case Profile and Documents (Civil Rights Litigation Clearinghouse).

California: Buffin v. City & County of San Francisco, No. 15-cv-04959 (N.D. Cal. Mar. 6, 2017)
“On October 28, 2015, arrestees in San Francisco who were unable to afford the bond set by the fixed “bail schedule” filed this lawsuit in the U.S. District Court for the Northern District of California. The plaintiffs sued the City and County of San Francisco and the State of California under 42 U.S.C. § 1983 and the Declaratory Judgment Act, 28 U.S.C. § 2201. The plaintiffs, represented by Equal Justice Under Law, asked the court for declaratory and injunctive relief, damages suffered as a result of defendants’ conduct, and reasonable attorneys’ fees. The plaintiffs claimed that San Francisco’s wealth-based pretrial detention scheme violated the Due Process and Equal Protection Clauses of the Constitution. Specifically, the plaintiffs claimed that by adhering to the generic “bond” schedule set by state law, San Francisco’s system jailed some of its poorest residents prior to a first court appearance solely because they couldn’t pay an arbitrary amount of money.” See Case Profile and Documents (Civil Rights Litigation Clearinghouse).

Florida: Menter v. Mahon, No. 17-cv-1029 (M.D. Fla. filed Aug. 30, 2017)
“Plaintiffs challenge in this action the use of secured money bail to detain only the most impoverished of misdemeanor arrestees. The City of Jacksonville, Florida’s wealth-based pretrial detention system violates the Equal Protection and Due Process Clauses of the United States Constitution and the Florida Constitution.” Complaint. See Money Bail System Challenged in Jacksonville, Florida, In Justice Today, Oct. 4, 2017.

Georgia: Walker v. City of Calhoun, 682 Fed. Appx. 721, 724-725 (11th Cir. 2017)
“This order violates Rule 65. First, requiring the City to “comply with the Constitution” is the archetypical and unenforceable “obey the law” injunction. See Int’l Longshoremen’s Ass’n, Local 1291 v. Philadelphia Marine Trade Ass’n, 389 U.S. 64, 69, 74, 88 S. Ct. 201, 19 L. Ed. 2d 236 (1967) (reversing decree that ordered party “to comply with [an arbitration award]”). Second, the order does not contain an operative command capable of enforcement or review. It requires the City to fashion constitutionally compliant post-arrest procedures, yet offers no guidance on the minimal standards required by the Constitution. See Hughey, 78 F.3d at 1531-32 (vacating injunction that required the defendant to stop discharges in violation of the Clean Water Act, but failed to explain how to do so). The rest of the order does not save the injunction from these deficiencies. The proscription against detaining misdemeanor arrestees unless the City offers them release on their own recognizance is an alternative means of compliance that is intertwined with the generalized requirement that the City enact lawful post-arrest procedures. Without any guidance, the district court’s order potentially subjects the City to contempt proceedings simply because new post-arrest procedures turn out to be unconstitutional. Rule 65 was meant to prevent such uncertainty. See Russell C. House Transfer & Storage Co. v. United States, 189 F.2d 349, 351 (5th Cir. 1951) (explaining that a court should not enjoin a party in general terms such that the party is subject to contempt proceedings “should at any time in the future [it] commit some new violations, unlike and unrelated to that with which it was originally charged”). Accordingly, we do not believe that, as written, the injunction can stand. Preliminary injunction vacated; and case remanded to the district court for further proceedings consistent with this opinion.” See Case Profile and Documents (Civil Rights Litigation Clearinghouse).

Illinois: General Order No. 18.8A Procedures for Bail Hearings and Pretrial Release (Cir. Ct. Cook County, IL July 17, 2017)
“This order is intended to ensure no defendant is held in custody prior to trial solely because the defendant cannot afford to post bail, to ensure fairness and the elimination of unjustifiable delay in the administration of justice, to facilitate the just determination of every criminal proceeding, and to preserve the public welfare and secure the fundamental human rights of individuals with interests in criminal court cases.”

Louisiana: State of Louisiana v. Bernard, No. 528-021 (Crim. Dist. Ct. Parish New Orleans Apr. 8, 2016)
“The issue before the court is: How long can a person who cannot afford to hire an attorney remain in jail without a date certain for proceedings to begin and funding from the legislature made available for constitutionally mandated legal representation?” “The court finds the absence of a date certain when proceedings are to be begin and when adequate funding will be made available by the legislature for constitutionally mandated representation of defendants who cannot afford an attorney violates the Sixth Amendment right to counsel and effective assistance of counsel and the Fourteenth Amendment Due Process Clause.” See Felony Defendants, Jailed for Months Without Lawyers, Ask New Orleans Judge for Their Release, Times-Picayune, Mar. 29, 2016; updated Apr. 16, 2017.

Maryland: Ct. App. Md. Rule 4-216.1 (Feb. 16, 2017)
“The Maryland Court of Appeals today, upon resuming a public meeting that began on January 5, 2017, considered Rule changes proposed by the Maryland Court of Appeals Standing Committee on Rules of Practice and Procedure in its 192nd report and supplements. During the meeting, the Court considered, amended, and then adopted the Rules. The changes to the Maryland Rules will provide guidance to judicial officers regarding pre-trial release of arrested individuals. The Court will issue a Rules Order, along with the newly adopted Rules, which include a new Rule 4-216.1. Over the next several days, Rules Committee staff will conform the proposed Rules to reflect the amendments adopted by the Court of Appeals. The Rules will take effect July 1, 2017. On February 16, the Court of Appeals unanimously approved Rule 4-216.1” Maryland Court of Appeals Approves Changes to Rules Regarding Pre-Trial Release, Maryland Courts Press Release, Feb. 7, 2017.

Mississippi: Burks v. Scott County, No. 14-cv-00745 (S.D. Miss. June 27, 2017)
“A Mississippi court settlement today in this case brings a victory for the plaintiffs, the ACLU, the ACLU of Mississippi and the Roderick and Solange MacArthur Justice Center, who on behalf of their clients challenged the county’s practice of detaining people who can’t afford an attorney for as long as a year without appointing counsel and without formally charging them with a crime. The settlement requires Scott County and three other counties to end this practice by appointing public defenders at arrest. Providing legal representation so much earlier in the process will ensure that arrestees have attorneys at their first bail hearings to argue for lower bail amounts and release until trial. The settlement also prohibits the counties from detaining people solely because they can’t afford to pay their bail amounts, a blow to unconstitutional wealth-based incarceration. The settlement applies to Eighth Circuit Court District, a circuit made up of Leake, Neshoba, Newton, and Scott counties, affecting thousands in the state of Mississippi.” See Case Profile and Documents (Civil Rights Litigation Clearinghouse).

Mississippi: Kennedy v. City of Biloxi, No. 15-cv-00348 (S.D. Miss. Mar. 7, 2016)
“On March 7, 2016, Judge Halil S. Ozerden entered a final judgment of dismissal, with Court retaining jurisdiction to enforce the private settlement agreement. On March 15, 2016, the parties officially reached a settlement agreement. As part of this settlement, the City of Biloxi adopted sweeping reforms and policy changes. These include: no longer contracting with for-profit probation companies; adoption of new court procedures and training for city officials on the new procedures; the establishment of full-time public defender office to represent indigent people; and judicial consideration of a person’s ability to pay fines at sentencing.” See Case Profile and Documents (Civil Rights Litigation Clearinghouse).

Missouri: Jenkins v. City of Jennings, No. 15-cv-00252 (E.D. Mo. 2016)
“On February 8th, 2015, a class of around 2,000 mostly black, impoverished residents of Jennings, Missouri filed this lawsuit in the U.S. District Court for the Eastern District of Missouri. The plaintiffs sued the City of Jennings under 42 U.S.C. § 1983, 18 U.S.C. § 1595, and 28 U.S.C. § 2201, as well as the First, Fourth, Sixth, Eighth, Thirteenth, and Fourteenth Amendments. The plaintiffs, represented by attorneys from Equal Justice Under Law, the ArchCity Defenders, and the St. Louis University School of Law, asked the court for a declaratory judgment acknowledging the City of Jennings violated plaintiffs’ constitutional rights, and an injunction to permanently alter the City’s policies and practices. . . .

On September 16th, 2015, the court (District Judge Carol E. Jackson) partially granted a joint motion for relief, and implemented a permanent injunction on behalf of the plaintiffs. The injunction laid out lawful policies for the City of Jennings to assess the ability of indigent individuals to pay fees, to collect debts through the civil system, and to meet legal standards of care in the jail. On July 13, 2016, Judge Jackson granted preliminary approval of a class action settlement agreement. According to the Washington Post, the defendants agreed to pay $4.7 million to the class of plaintiffs, available here. The judge granted final approval of the class action settlement for $4.7 million on December 14, 2016.” See also Town Near Ferguson, Mo., Agrees to Pay $4.7 Million to Settle ‘Debtors Prison’ Case, Washington Post, July 14, 2016.

Missouri: Pierce v. City of Velda, No. 15-00570 (ED Mo. 2015)
“In a judgment rendered in response to a federal lawsuit filed by Equal Justice Under Law and ArchCity Defenders, Velda City—a city in St. Louis County, Missouri—has ended the practice of requiring secured cash bail for all offenses prosecuted in municipal court. The landmark case has national pretrial justice advocates taking notice, as it offers a new way to overturn unconstitutional bail and money-based detention practices that keep poor defendants behind bars for no other reason than their inability to pay.” Statement on Cash Bail Abolished in Velda City, MO, PJI, June 4, 2015.

Supreme Court Cases

Jennings v. Rodriguez, No. 15-1204 (U.S. rearg. Oct. 3, 2017)
“Issues: (1) Whether aliens seeking admission to the United States who are subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months; (2) whether criminal or terrorist aliens who are subject to mandatory detention under Section 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months; and (3) whether, in bond hearings for aliens detained for six months under Sections 1225(b), 1226(c), or 1226(a), the alien is entitled to release unless the government demonstrates by clear and convincing evidence that the alien is a flight risk or a danger to the community, whether the length of the alien’s detention must be weighed in favor of release, and whether new bond hearings must be afforded automatically every six months.” See also Argument Preview: The Constitutionality of Mandatory and Lengthy Immigrant Detention Without a Bond Hearing, SCOTUSBlog, Sept. 26, 2017.

Nelson v. Colorado, 137 S.Ct. 1249 (2017)
“When a criminal conviction is invalidated by a reviewing court and no retrial will occur, is the State obliged to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction? Our answer is yes. Absent conviction of a crime, one is presumed innocent. Under the Colorado law before us in these cases, however, the State retains conviction-related assessments unless and until the prevailing defendant institutes a discrete civil proceeding and proves her innocence by clear and convincing evidence. This scheme, we hold, offends the Fourteenth Amendment’s guarantee of due process.”

Manuel v. City of Joliet, 137 S.Ct. 911 (2017)
“Petitioner Elijah Manuel was held in jail for some seven weeks after a judge relied on allegedly fabricated evidence to find probable cause that he had committed a crime. The primary question in this case is whether Manuel may bring a claim based on the Fourth Amendment to contest the legality of his pretrial confinement. Our answer follows from settled precedent. The Fourth Amendment, this Court has recognized, establishes “the standards and procedures” governing pretrial detention. See, e.g., Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). And those constitutional protections apply even after the start of “legal process” in a criminal case — here, that is, after the judge’s determination of probable cause. See Albright v. Oliver, 510 U.S. 266, 274, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (plurality opinion); id., at 290, 114 S.Ct. 807 (Souter, J., concurring in judgment). Accordingly, we hold today that Manuel may challenge his pretrial detention on the ground that it violated the Fourth Amendment (while we leave all other issues, including one about that claim’s timeliness, to the court below).” See also Supreme Court Rules Fourth Amendment Rights Continue Beyond Legal Process, Paper Chase (Jurist), Mar. 21, 2017.

McDonald v. City of Chicago, 130 S.Ct. 3020, 3034-3035 (2010)
“Two years ago, in District of Columbia v. Heller, 554 U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home. The city of Chicago (City) and the village of Oak Park, a Chicago suburb, have laws that are similar to the District of Columbia’s, but Chicago and Oak Park argue that their laws are constitutional because the Second Amendment has no application to the States. We have previously held that most of the provisions of the Bill of Rights apply with full force to both the Federal Government and the States. Applying the standard that is well established in our case law, we hold that the Second Amendment right is fully applicable to the States. . . . The Court also shed any reluctance to hold that rights guaranteed by the Bill of Rights met the requirements for protection under the Due Process Clause. The Court eventually incorporated almost all of the provisions of the Bill of Rights [See n.12. “including prohibition against excessive bail”]. Only a handful of the Bill of Rights protections remain unincorporated.”

United States v. Salerno, 481 U.S. 739 (1987)
“The Bail Reform Act of 1984 (Act) allows a federal court to detain an arrestee pending trial if the Government demonstrates by clear and convincing evidence after an adversary hearing that no release conditions ‘will reasonably assure. . . the safety of any other person and the community.’ The United States Court of Appeals for the Second Circuit struck down this provision of the Act as facially unconstitutional, because, in that court’s words, this type of pretrial detention violates ‘substantive due process.’ We granted certiorari because of a conflict among the Courts of Appeals regarding the validity of the Act. 479 U.S. 929 (1986). We hold that, as against the facial attack mounted by these respondents, the Act fully comports with constitutional requirements. We therefore reverse.”

Bearden v. Georgia, 461 U.S. 660, 661-662 (1983)
“The question in this case is whether the Fourteenth Amendment prohibits a State from revoking an indigent defendant’s probation for failure to pay a fine and restitution. Its resolution involves a delicate balance between the acceptability, and indeed wisdom, of considering all relevant factors when determining an appropriate sentence for an individual and the impermissibility of imprisoning a defendant solely because of his lack of financial resources. We conclude that the trial court erred in automatically revoking probation because petitioner could not pay his fine, without determining that petitioner had not made sufficient bona fide efforts to pay or that adequate alternative forms of punishment did not exist. We therefore reverse the judgment of the Georgia Court of Appeals upholding the revocation of probation, and remand for a new sentencing determination.”

Schilb v. Kuebel, 404 U.S. 357 (1971)
“Bail, of course, is basic to our system of law, Stack v. Boyle, 342 U. S. 1 (1951); Herzog v. United States, 75 S. Ct. 349, 351, 99 L. Ed. 1299, 1301 (1955) (opinion of DOUGLAS, J.), and the Eighth Amendment’s proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment. Pilkinton v. Circuit Court, 324 F. 2d 45, 46 (CA8 1963); see Robinson v. California, 370 U. S. 660, 666 (1962), and id., at 675 (DOUGLAS, J., concurring). But we are not at all concerned here with any fundamental right to bail or with any Eighth Amendment-Fourteenth Amendment question of bail excessiveness. Our concern, instead, is with the 1% cost-retention provision. This smacks of administrative detail and of procedure and is hardly to be classified as a “fundamental” right or as based upon any suspect criterion. The applicable measure, therefore, must be the traditional one: Is the distinction drawn by the statutes invidious and without rational basis? Dandridge v. Williams, 397 U. S. 471, 483-487 (1970). See Richardson v. Belcher, ante, p. 78, at 81.”

Bandy v. United States, 81 S.Ct. 197 (1960)
“On a previous application, bail was granted conditioned on the filing of a sufficient bond in the amount of $ 5,000. Bandy v. United States, 5 L. Ed. 2d 34, 81 S. Ct. 25. Now an application is made to me under Rule 46(a)(2) of the Federal Rules of Criminal Procedure for release on ‘personal recognizance’ pending certiorari. The application recites that the petitioner is unable to give security for the prescribed bond. . . . I [Justice Douglas] approach this application with the conviction that the right to release is heavily favored and that the requirement of security for the bond may, in a proper case, be dispensed with. Rule 46(d) indeed provides that ‘in proper cases no security need be given.’ For there may be other deterrents to jumping bail: long residence in a locality, the ties of friends and family, the efficiency of modern police. All these in a given case may offer a deterrent at least equal to that of the threat of forfeiture.”

Stack v. Boyle, 342 U.S. 1, 4, 6 (1951)
“From the passage of the Judiciary Act of 1789, 1 Stat. 73, 91, to the present Federal Rules of Criminal Procedure, Rule 46 (a) (1), federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. See Hudson v. Parker, 156 U. S. 277, 285 (1895). Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning. . . . If bail in an amount greater than that usually fixed for serious charges of crimes is required in the case of any of the petitioners, that is a matter to which evidence should be directed in a hearing so that the constitutional rights of each petitioner may be preserved. In the absence of such a showing, we are of the opinion that the fixing of bail before trial in these cases cannot be squared with the statutory and constitutional standards for admission to bail.”

Federal Cases

Jauch v. Choctaw, No. 16-60690 (5th Cir. Oct. 24, 2017)
“Jessica Jauch was indicted by a grand jury, arrested, and put in jail— where she waited for 96 days to be brought before a judge and was effectively denied bail. The district court found this constitutionally permissible. It is not. A pre-trial detainee denied access to the judicial system for a prolonged period has been denied basic procedural due process, and we therefore reverse the district court’s judgment.”

Gevorkyan v. Judelson, No. 15-3249-cv (2nd Cir. July 28, 2017)
“The [New York] Court of Appeals has now made clear the principle of New York law that decides this issue: because Bogoraz was never admitted to bail, New York Insurance Law precludes Judelson from retaining the premium. This prohibition applies regardless of the terms of the parties’ contract because, under New York law, contractual provisions that contravene applicable laws in ways that harm the public policies underlying those laws are unenforceable. See Village Taxi Corp. v. Beltre, 91 A.D.3d 92, 99-100 (2d Dep’t 2011) (citing, inter alia, Galbreath-Ruffin Corp. v. 40th & 3rd Corp., 19 N.Y.2d 354, 364 (1967)). The Court of Appeals has now clearly opined that a bail bondsman’s retention of a premium after the denial of bail violates New York law and runs afoul of an important public policy underlying New York Insurance Law.”

Darnell v. Pineiro, 849 F.3d 17 (2nd Cir. 2017)
“Twenty state pretrial detainees brought individual § 1983 claims in the same complaint alleging that the City of New York and the supervisory officers of a pre-arraignment holding facility (collectively, “the defendants”) were deliberately indifferent to allegedly unconstitutional conditions of confinement at the holding facility. The United States District Court for the Eastern District of New York (Kuntz, J.) granted summary judgment in favor of the defendants, denied the detainees’ motion to reconsider that judgment, and denied a subsequent motion to reconsider the denial of the motion for reconsideration. The detainees appealed. The detainees concede that certain claims were properly dismissed. As to those claims, we affirm the District Court’s judgment. However, because there were genuine disputes as to material facts with respect to the challenged conditions of confinement, the individual defendants’ knowledge of those conditions, and the failure to remedy those conditions, as well as to the liability of the City of New York, we vacate the judgment as to the remaining claims that were dismissed and remand for further proceedings.”

Humbert v. Mayor and City Council of Baltimore City, Nos. 15-1768, 15-2461 (4th Cir. Aug. 2, 2017)
“For over a year, Appellant Marlow Humbert languished in pretrial solitary confinement, charged with committing a heinous act of sexual assault. The questionable investigatory strategies of Baltimore City Police Department (“BPD”) officers led to Humbert’s unlawful arrest. Afterwards, the officers failed to inform the State’s Attorney that the victim could not positively identify Humbert and that DNA reports excluded him as a suspect. Once the prosecutor obtained this information, he dropped the charges and Humbert was finally freed. Humbert then initiated a suit against the officers who caused his arrest and the government officials he believed sanctioned the deprivation of his liberty.

A jury determined that the officers violated Humbert’s constitutional rights and awarded him $2.3 million in compensatory and punitive damages. The district court, however, struck the damages award, concluding that the officers were entitled to qualified immunity because they had probable cause to arrest Humbert. On appeal, Humbert maintains that the district court erred in its probable cause analysis by misinterpreting the evidence and misapplying the law. As explained below, we reverse the district court’s judgment and remand with instructions to reinstate the jury verdict.”

Hernandez v. Sessions, No. 16-cv-00620 (9th Cir. Oct. 2, 2017)
“The panel affirmed the district court’s order granting a preliminary injunction in favor of Plaintiffs, a class of noncitizens in removal proceedings who are detained under 8 U.S.C. § 1226(a) in the Central District of California and are unable to afford the bond set by immigration officials.”

Holland v. Rosen, No. No. 17-4317 (D.N.J. Sept. 21, 2017)
“This dispute centers on the constitutionality of New Jersey’s recently-enacted Criminal Justice Reform Act (“CJRA”). The matter is presently before the Court upon the motion of Plaintiffs Brittan B. Holland (“Holland”) and Lexington National Insurance Corporation (“Lexington”) for a preliminary injunction enjoining Defendants Kelly Rosen, the Team Leader for Pretrial Services in the Criminal Division of the Superior Court of New Jersey; Mary E. Colalillo, the Camden County Prosecutor; and Christopher S. Porrino, the Attorney General of New Jersey, (collectively, “the State Defendants” or “Defendants”), as well as their agents, “from taking any actions to enforce statutory provisions [of the CJRA] . . . that allow imposition of severe restrictions on the pre-trial liberty of presumptively innocent criminal defendants without offering the option of monetary bail.” (Pl. Proposed Order.) . . . .

In the present matter, Plaintiffs have not made a substantial showing of possibility of success nor of irreparable harm stemming from unconstitutional conduct under the CJRA, either on the face of the statute or as applied. Additionally, the balance of risk of harm to others if the injunction is granted substantially outweighs the harms to Plaintiffs if the injunction is denied. Moreover, the public interest in the success of the risk-based release system exceeds the private interests of Holland and Lexington National if the present situation continues as the litigation unfolds.”

United States v. Galitsa, No. 17 Cr. 324 (S.D.N.Y. July 28, 2017)
“Thiodore Igorovich Galitsa (“Galitsa”) is charged with one count of illegal reentry into the United States, 8 U.S.C. §§ 1326(a), (b)(1), and one count of making a false statement to an officer of the Department of Homeland Security, 18 U.S.C. § 1001(a)(2). On April 25, 2017, Magistrate Judge Fox set conditions for Galitsa to be released pending trial. Dkt. 5. The Government did not seek review of the Magistrate Judge’s release determination. Instead, the Department of Homeland Security, Immigration and Customs Enforcement (“ICE”) took Galitsa into its custody pursuant to an ICE detainer. ICE promptly returned Galitsa to pre-trial detention pursuant to a writ of habeas corpus ad prosequendum. Although Galitsa satisfied the conditions of his bail more than two months ago, he remains in federal custody. . . .

In sum, the Court holds that the Government has to make a choice when it is dealing with a removable alien criminal defendant. It can forego prosecution, and detain and then remove the person through normal immigration proceedings or it can prosecute the person. What it cannot do is treat the United States Code like a take-out food menu whereby the Government can mix and-match from column A (prosecution or removal) and from column B (Bail Reform Act or ICE detention rules). If the Government chooses to prosecute, then it must proceed in accordance with all the rules that govern criminal prosecutions. First and foremost among those rules is the Bail Reform Act. Thus, the Government must decide whether to continue the criminal case – and comply with the magistrate judge’s release determination – or to proceed under the INA, dismiss this case, and remove Galitsa from the country. What the Government cannot do is have it both ways.”

State Cases

New Jersey: State v. Ingram, 165 A.3d 797 (NJ Sup. Ct. 2017)
“Neither the statute’s plain language nor principles of due process require the State to present testimony from alive witness at every detention hearing. Instead, the State may proceed by proffer to try to satisfy its burden of proof and show that detention is warranted. Trial judges, however, retain discretion to require direct testimony when they are dissatisfied with the State’s proffer.”

New Mexico: State v. Brown, 338 P.3d 1276 (NM 2014)
“The Bill of Rights of the New Mexico Constitution guarantees that “[a]ll persons… before conviction” are entitled to be released from custody pending trial without being required to post excessive bail, subject to limited exceptions in which release may be denied in certain capital cases and for narrow categories of repeat offenders. N.M. Const. art. II, § 13. Our rules of criminal procedure provide the mechanisms through which we honor this constitutional right to pretrial release. The rules require that a defendant be released from custody on the least restrictive conditions necessary to reasonably assure both the defendant’s appearance in court and the safety of the community. See Rule 5-401 NMRA. In this case, Defendant Walter Brown presented the district court with uncontroverted evidence demonstrating that nonmonetary conditions of pretrial release were sufficient to reasonably assure that Defendant was not likely to pose a flight or safety risk. Despite this evidence, the district court ordered that Defendant be held in jail unless he posted a $250,000 cash or surety bond, based solely on the nature and seriousness of the charged offense. We conclude that the district court erred by requiring a $250,000 bond when the evidence demonstrated that less restrictive conditions of pretrial release would be sufficient. We therefore entered an order reversing the district court’s pretrial release order and instructing the district court to release Defendant on appropriate nonmonetary conditions. We now issue this precedential opinion to explain the basis for our decision, to clarify the purposes and controlling legal principles for setting bail, and to provide guidance for future pretrial release decisions.”

New York: Gevorkyan v. Judelson, 29 N.Y.3d 452 (2017)
“The United States Court of Appeals for the Second Circuit, by certified question, has asked us whether an entity engaged in the bail bond business may retain the premium paid on a criminal defendant’s behalf when bail is denied and the defendant is never released from custody. Inasmuch as the Insurance Law provides that such an entity does not earn a premium for a bail bond if a court refuses to accept the bond following a bail source hearing, we answer in the negative.”

New York: People ex rel. McManus v. Horn, 18 N.Y.3d 660 (2012)
“In this appeal, we consider whether CPL 520.10(2)(b) prohibits a court from designating only one form of bail. . . . Both parties’ contentions have some degree of linguistic merit. However, in our view, defendant’s proposed construction is the better reading of the statute as it comports with the overall statutory structure and the legislative purpose that prompted the enactment of section 520.10 in the Criminal Procedure Law. Inclusion of the word “may” in both subdivisions was the simplest way for the Legislature to codify the two permissible methods for fixing bail: under subdivision (2) (a), a court may order a specific amount of bail without stating any particular bail form (in which case the accused may choose either an unsecured surety bond or an unsecured appearance bond); or, under subdivision (2) (b), a court may specify the forms of bail but the defendant is entitled to at least two alternative choices. The Legislature could not have used the word “must” in either provision because that would have defeated the court’s discretion to choose between the two options for fixing bail. . . . [W]e hold that CPL 520.10(2)(b) prohibits a court from fixing only one form of bail.” McManus v. Horn (Challenging Trial Court’s Use of “Cash-Only” Bail) (ACLU); Amicus Brief NYCLU.

New York: In the Matter of Sardino, 58 N.Y.2d 286, 289-290 (1983)
“These court records also demonstrated that the petitioner regularly abused his authority with respect to setting bail. In most of the cases under consideration he arbitrarily required defendants to post bail without inquiry or reference to the statutory standards (CPL 510.30). His conduct and statements at the time show that he was acting punitively with little or no interest in the only matter of legitimate concern, namely, whether any bail or the amount fixed was necessary to insure the defendant’s future appearances in court (CPL 510.30, subd 2, par [a]). He often ordered defendants to be held without bail for no apparent reason, even in cases where bail was required as a matter of law or the offense charged was of such a minor nature that the defendant could not ordinarily be held in custody to assure his appearance in court (see, e.g., CPL 150.75; Penal Law, § 221.05). On several occasions where defendants appeared at arraignment without counsel petitioner summarily and with no express or apparent legal or rational justification ordered that they be held in custody for “mental examinations” (CPL art 730).”

Texas: O’Donnell v. Harris County, No. H-16-1414 (S.D. Tex. Apr. 28, 2017) (Memorandum for Class Certification and Order of Preliminary Injunction)
“Even with the factual and legal complexities, at the heart of this case are two straightforward questions: Can a jurisdiction impose secured money bail on misdemeanor arrestees who cannot pay it, who would otherwise be released, effectively ordering their pretrial detention? If so, what do due process and equal protection require for that to be lawful? Based on the extensive record and briefing, the fact and expert witness testimony, the arguments of able counsel, and the applicable legal standards, the answers are that, under federal and state law, secured money bail may serve to detain indigent misdemeanor arrestees only in the narrowest of cases, and only when, in those cases, due process safeguards the rights of the indigent accused. Because Harris County does not currently supply those safeguards or protect those rights, the court will grant the plaintiffs’ motion for preliminary injunctive relief.” See also 5th Circuit Court Will Weigh Harris County’s Cash-Bail System, Houston Chronicle, Oct. 2, 2017; How Harris County’s Federal Bail Lawsuit Spreads Beyond Houston, Texas Tribune, Oct. 2, 2017; Supreme Court Refuses to Block Order Finding Texas County’s Bail System Discriminatory, Paper Chase (Jurist), June 9, 2017.

  1. REFERENCE SOURCES

Reports

8 Basic Principles for Money Bail Reform (Katal Center 2017)
“These principles are designed to assist organizers, advocates, attorneys, and funders advance pretrial justice reform initiatives that can serve the movement to end mass incarceration.”

A More Just New York City (Independent Commission on NYC Criminal Justice and Incarceration Reform 2017)
“For more than one year, the Commission has studied the City’s criminal justice system, and Rikers Island in particular. In addition to gathering formal testimony and interviewing a wide range of experts—city officials, corrections staff, formerly incarcerated New Yorkers and their families, prosecutors, defense attorneys, clergy, service providers, advocates, and others—the Commission undertook a far-reaching community engagement process, including meetings with the faith community, design workshops, public roundtables throughout the City, and a website to solicit public input. The Commission also performed in-depth data analysis and evaluated model programs and practices from across the country and around the world.”

Against the Odds: Experimenting with Alternative Forms of Bail in New York City’s Criminal Courts (Vera Institute of Justice 2017)
“The Vera Institute of Justice launched a three-month experiment in New York City arraignment courts to examine what would happen if alternative forms of bail were used more often. In what kinds of cases might judges be willing to set these forms of bail? In what amounts? What impact would these alternatives have on a person’s ability to make bail? What other pretrial outcomes might be expected? Drawing from a cohort of 99 cases in which an unsecured or partially secured bond was set, these cases were tracked over a nine- to 12-month period to document bail-making, court appearance, pretrial re-arrest, and final case disposition. Interviews were conducted with judges, defenders, and court staff to better understand the results and develop recommendations for improving the use of bail in New York City.”

Bail: An Overview of Federal Criminal Law (CRS 2017)
“This is an overview of the federal law of bail. Bail is the release of an individual following his arrest upon his promise—secured or unsecured; conditioned or unconditioned—to appear at subsequent judicial criminal proceedings. An accused may be denied bail if he is unable to satisfy the conditions set for his release. He may also be denied bail if the committing judge or magistrate concludes that no amount of security or any set of conditions will suffice to ensure public safety or the individual’s later appearance in court.”

Bail Decisionmaking (BJA 2011)
“Bail decisionmaking is a critical component of the pretrial phase of case processing. Research shows that outcomes of these decisions are influenced by legal factors such as severity of the offense and prior record, and extralegal characteristics such as income and social disadvantage of the defendant as well as his or her race, ethnicity, and gender. Pretrial detention is being used increasingly, and those who are detained have harsher outcomes than those who are not.”

Bail Fail: Why the U.S. Should End the Practice of Using Money for Bail (JPI 2012)
“This report provides an explanation and analysis of the use of money bail in the pretrial justice system. . . . There are vastly more effective and cost-saving practices that should replace money bail as our primary release mechanism. By implementing more effective and efficient programs and services, various jurisdictions across the U.S. are demonstrating the cost savings and enhancement of community safety that could be gained.”

Confronting Criminal Justice Debt: A Comprehensive Project for Reform (Harv. L. Sch. 2016)
“Confronting Criminal Justice Debt: A Comprehensive Project for Reform is a collaboration of the Criminal Justice Policy Program and the National Consumer Law Center (NCLC). It focuses on the fees and fines imposed by criminal justice system. Excessive financial obligations, as well as improper practices for imposing and enforcing court debt, can have extremely harmful consequences for individuals, families, and communities. Often it is poor people and people of color that are disproportionately impacted. Reliance on criminal justice debt to fund important government functions also distorts the operation of the legal system.”

Constitutional Violations in South Carolina (NACDL)
“When a person is accused of a crime, the U.S. Constitution guarantees that person the right to a lawyer even if he or she cannot afford one. The U.S. Supreme Court affirmed this basic principle more than a half century ago in Gideon v. Wainwright, and in subsequent cases that expanded the right to misdemeanor prosecutions. Yet this right is violated every day in South Carolina’s magistrate and municipal courts – collectively referred to as summary courts – where scores of people are convicted, sentenced, and sometimes incarcerated, without having been represented by counsel.”

Criminalizing Poverty: Debtor’s Prison in the 21st Century (ABA 2016)
“Debtor’s prison is thought to be a thing of the past, and yet there is a growing awareness that we continue to criminalize poverty in the United States. In the past decade, there has been an increase of local governments instituting court costs, fines and fees for minor offenses which have a devastating effect on the poor. The inability to pay has resulted in the jailing of children and adults as well as the implementation of further debt by charging poor defendants for their public defender and room and board while in prison. Examples range from children receiving steep fines for truancy and then being jailed when they are unable to pay to adults being jailed for failing to pay fines associated with traffic violations. The issue came to the forefront with the Department of Justice’s civil rights investigations in Ferguson, MO which revealed that the Ferguson Municipal Court has a pattern of focusing on revenue rather than on public safety.”

Debtor’s Prison for Kids: The High Cost of Fines and Fees in the Juvenile Justice System (Juvenile Law Center 2016)
“Approximately one million youth appear in juvenile court each year. In every state, youth and families face juvenile justice costs, fees, fines, or restitution. Youth who can’t afford to pay for their freedom often face serious consequences, including incarceration, extended probation, or denial of treatment—they are unfairly penalized for being poor and pulled deeper into the justice system. Many families either go into debt trying to pay these costs or must choose between paying for basic necessities, like groceries, and paying court costs and fees. Research shows that costs and fees actually increase recidivism and exacerbate economic and racial disparities in the juvenile justice system.”

Detaining the Poor: How Money Bail Perpetuates an Endless Cycle of Poverty and Jail Time (Prison Policy Initiative 2016)
“While the jail population in the U.S. has grown substantially since the 1980s, the number of convicted people in jails has been flat for the last 15 years. Detention of the legally innocent has been consistently driving jail growth, and the criminal justice reform discussion must include a discussion of local jails and the need for pretrial detention reform. This report will focus on one driver of pretrial detention: the inability to pay what is typically $10,000 in money bail. Building off our July 2015 report on the pre-incarceration incomes of people in prison, this report provides the pre-incarceration incomes of people in local jails who were unable to post a bail bond. This report aims to give the public and policymakers the foundation for a more informed discussion about whether requiring thousands of dollars in bail bonds makes sense given the widespread poverty of the people held in the criminal justice system and the high fiscal and social costs of incarceration.”

Devil in the Details: Bail Bond Contracts in California (UCLA School of Law Criminal Justice Reform Clinic 2017)
“The California Money Bail Reform Act of 2017 (SB 10 and AB 42) intends to significantly reduce the use of money bail and to increase the number of people who are able to safely return home after arrest. Under the current money bail system, many people accused of crimes lack sufficient financial resources to post bail and must enter into bail bond contracts to avoid unnecessary pretrial detention. This study examines the potential consequences of bail bond contracts for the accused and their families. Our research shows that problems of money bail extend well beyond exorbitant bail amounts and into the commercial bail bond industry. The Devil in the Details: Bail Bond Contracts in California provides an analysis of publicly available bail bond contracts. We found that even the most industrious and sophisticated consumer would be significantly hampered in making an educated choice of bail bond company. We examined more than 400 bail bond company websites across the 58 counties to find that fewer than 15% of companies provide copies of their agreements online for review prior to signing. After analyzing the fine print in more than 100 contract documents online corresponding to 10 sureties, we identified 20 problems with bail bond contracts that violate common notions of fairness and justice.”

Economic Impacts of Cash Bail on the City of Philadelphia (Philadelphia Office of the Controller 2017)
“Cash bail can be reduced or eliminated at a substantial cost savings to the City of Philadelphia. Major cities across the U.S. are looking at innovative ways to manage pretrial defendants, balancing the need to ensure justice is served and maintaining public safety, while evaluating the long-term impacts of incarceration and correction of the offender. Research has found current systems can cause more damage on the incarcerated and their families than benefit, whereas alternatives may be just as effective, yet provide better futures for those in the criminal justice system. This report examines the economic implications of the cash bail system by comparing both the direct and indirect costs of incarceration against cash bail alternatives. This report examines cost implications, underscoring the problem’s severity and need for reform.”

Era of Mass Expansion: Why State Officials Should Fight Jail Growth (Prison Policy Initiative 2017)

“One out of every three people behind bars is being held in a local jail, yet jails get almost none of the attention that prisons do. Jails are ostensibly locally controlled, but the people held there are generally accused of violating state law, and all too often state policymakers (and state reform advocates) ignore jails. In terms of raw numbers state prison reform is the larger prize, but embracing the myth that jails are only a local matter undermines current and future state-level reforms. Jails may be locally controlled, but jail practices reflect state priorities and change state-wide outcomes. The 11 million people who go to jail each year are there generally for brief, but life-altering, periods of time. Most are released in days or hours after their arrest, but others are held for months or more, often because they are too poor to make bail. Only about a third of the 720,000 people in jails on a given day have been convicted and are serving short sentences, typically under a year and most often for misdemeanors. Jail policy is therefore in large part about how people — who are legally innocent, until proven guilty — are treated and about how policymakers think our criminal justice system should respond to low-level offenses. As this report will explain, jails impact our entire criminal justice system and millions of lives every year.”

Examining the Impact of the Brooklyn Supervised Release Program (Center for Court Innovation 2016)
“Results showed that the Brooklyn Supervised Release Program did not engage in net widening. The program enrolled the intended target population, composed of comparatively serious misdemeanor defendants who would have otherwise faced significant bail. Specifically, program participants were compared to both broadly similar misdemeanor cases (based on having a comparable range of bail amounts requested by the prosecutor) and to the general population of misdemeanor defendants in Brooklyn. In both analyses, Supervised Release participants were more likely to be male and non-white, and represented a more serious population, seen in current charges, prior histories (more prior misdemeanor, felony and violent felony arrests) and specific bail amounts requested. If they were not engaged in the program, the evidence suggests that program participants would have seen bail that is approximately $500 more than similar misdemeanants and over $1,500 higher than all other misdemeanants in Brooklyn. Moreover, according to the flight risk assessment that the New York City Criminal Justice Agency administers to criminal defendants citywide, 94% of Supervised Release participants were deemed “Not Recommended for Release on own Recognizance (ROR)” (i.e., high risk), indicating that the program appropriately engages a high flight risk population.”

Fine Time Massachusetts: Judges, Poor People, and Debtors’ Prison in the 21st Century (Mass. Senate 2016)
“In December 2015, the Senate Committee on Post Audit and Oversight opened an inquiry into a little-noticed aspect of Massachusetts criminal justice – specifically, into the fines, fees, court costs, and other assessments imposed on defendants as they move through our courts and corrections systems. This inquiry is ongoing. In preparing for an initial public hearing on the subject, Committee members and staff met and interviewed the individual identified in these pages as James K. At the hearing, held July 28,2016, James K recounted his story to senators, staff, and others in attendance. The crux of it was an apparently aggressive effort by a judge to bring in revenue — or else — from a defendant who was obviously and desperately poor, an effort that ended with the judge’s ordering the defendant– James K — to “work off” his obligations by going to jail. His experience did not seem to be isolated, James told the Committee. Poor offenders he met during the 36 days he spent incarcerated at the Worcester County Jail referred to his situation by a popular local nickname: “fine time.” This report investigates “fine time” in Massachusetts.”

Following the Money of Mass Incarceration (Prison Policy Initiative 2017)
“The cost of imprisonment — including who benefits and who pays — is a major part of the national discussion around criminal justice policy. But prisons and jails are just one piece of the criminal justice system and the amount of media and policy attention that the various players get is not necessarily proportional to their influence. In this first-of-its-kind report, we find that the system of mass incarceration costs the government and families of justice-involved people at least $182 billion every year. In this report: • we provide the significant costs of our globally unprecedented system of mass incarceration and over-criminalization, • we give the relative importance of the various parts, • we highlight some of the under-discussed yet costly parts of the system, and then • we share all of our sources so that journalists and advocates can build upon our work.”

For Better or For Profit: How the Bail Bonding Industry Stands in the Way of Fair and Effective Pretrial Justice (Justice Policy Institute 2012)
“There are proven alternatives to the for-profit system that rely on statistically validated assessments of risk and a continuum of pretrial release options instead of money. It is through the use of these alternatives that the U.S. will be able to eliminate the use of the for-profit bail bonding industry, and ultimately money bail itself, while improving outcomes for people and communities and safely reduce jail populations, resulting in less costs and more safety for all of us.”

Fundamentals of Bail: A Resource Guide for Pretrial Practitioners and a Framework for American Pretrial Reform (PJI 2014)
“Pretrial justice requires that those seeking it be consistent with both their vision and with the concept of pretrial best practices, and this document is designed to help further that goal. It can be used as a resource guide, giving readers a basic understanding of the key areas of bail and the criminal pretrial process and then listing key documents and resources necessary to adopt a uniform working knowledge of legal and evidence-based practices in the field. Hopefully, however, this document will serve as more than just a paper providing mere background information, for it is designed, instead, to also provide the intellectual framework to finally achieve pretrial justice in America … in this country we have undertaken two generations of pretrial reform, and we are currently in a third. The lessons we have learned from the first two generations are monumental, but we have not fully implemented them, leading to the need for some “grand unifying theory” to explore how this third generation can be our last. In my opinion, that theory comes from a solid consensus understanding of the fundamentals of bail, why they are important, and how they work together toward an idea of pretrial justice that all Americans can embrace” (p. 4). Sections following an executive summary are; introduction—what bail and bond are; why we need pretrial improvements; the history of bail; legal foundations of pretrial justice; pretrial research; national standards on pretrial release; pretrial terms and phrases; application—guidelines for pretrial reform; and conclusion.”

Have You Asked Them? Talking to Defendants About Money Bond and Pretrial Release (PJI 2017)
“In 2016 PJI helped fund a small research project at George Mason University’s (GMU) Department of Criminology, Law and Society and the Center for Evidence-Based Crime Policy to learn what people who go through the system had to say about their motivations and the impact of the system. The researchers surveyed two groups: inmates who were in jail pending trial and those who had been released pretrial under supervision. Key Findings: -Money is the primary factor keeping people in jail before trial, -Money bail has a negative impact on families, and -Arrested people have low confidence in money bail and consider it unfair.”

High Cost of Bail: How Maryland’s Reliance on Money Bail Jails the Poor and Costs the Community Millions (Maryland Public Defender 2016)
“In Maryland, District Court commissioners and judges routinely require defendants to post bail in order to be released before trial. In practice, this system jails the poor and allows the rich to go free. Multiple studies, in Maryland and across the United States, have demonstrated that the key factor in the incarceration of people awaiting trial is not the risk they pose to society, or their risk of failing to appear in court, but simply whether they have enough money to pay bail. Even more, studies show that the widespread use of “secured bail”—which requires payment or security, such as a property title, posted directly to the court, or posting of corporate bond to obtain release—causes new crime, coerces convictions, and has little or no impact on defendants’ return to court. Relying on these studies and legal analysis, the United States Department of Justice, former U.S. Attorney General Eric Holder, Maryland Attorney General Brian Frosh, and the American Bar Association, among others, have all concluded that a pretrial detention system that jails people because they are too poor to pay bail is irrational and unconstitutional. The purpose of this report is to quantify the cost of Maryland’s wealth-based detention system to the community. Based on a statistical analysis of more than 700,000 District Court criminal cases filed from 2011 to 2015 in 18 jurisdictions, this report is the most comprehensive public study of Maryland’s pretrial detention scheme to date. The results are staggering.”

Improving Pretrial Justice in New Jersey (PJI 2017)
“The Pretrial Justice Institute sat down with Roseanne Scotti, New Jersey State Director of the Drug Policy Alliance and one of the leaders in the effort to improve the state’s pretrial system, to talk about how it came about.”

Incarceration’s Front Door: The Misuse of Jails in America (Vera Institute of Justice 2016)
“Given the complex role jails play in compounding the manifold negative consequences of mass incarceration in America—well acknowledged today on both sides of the aisle—local policymakers and their constituents interested in reducing recidivism, improving public safety, and promoting stronger, healthier communities might do well to take a hard look at how the jail in their city or county is used. To help foster public debate and action by public officials, this report offers an overview of the nation’s misuse of jails. It examines the characteristics of the people who typically cycle in and out of jails; some of the key policies that contributed to the rise in the use of jail; and the impact of jail incarceration on individuals, families, and communities. It also looks at key decision points where strategies can be adopted to decrease the misuse of jails within the American criminal justice system.”

Jail in New York City: Evidence-Based Opportunities for Reform (Center for Court Innovation 2017)
“Based on an extensive analysis of New York City data, this report suggests the city’s jail population can be significantly reduced, a move that would also cut costs substantially. To identify ways to safely reduce the use of jail, the New York City Mayor’s Office of Criminal Justice commissioned research on the path of criminal cases from arrest through bail decisions to sentencing.”

Justice for All: Report and Recommendations of the Task Force on Fair Justice for All: Court-Ordered Fines, Penalties, Fees, and Pretrial Release Policies (Sup. Ct. Ariz. 2016)
“In order to support the study and recommendations of the Fair Justice for All Task Force, the AOC built a database of 800,000 cases to analyze what is occurring with misdemeanor, criminal traffic, and civil traffic defendants in Arizona. A summary analysis of that data can be found on the task force’s website. Arizona’s courts are now bringing evidence-based practices to pretrial services. The Arizona Judicial Branch’s strategic agenda, Advancing Justice Together, calls for examining pretrial release policies and procedures; release conditions for eligible defendants; and research-based practices to promote defendant accountability, crime reduction, and community protection.”

Misdemeanor Bail Reform and Litigation: An Overview (Georgia State University College of Law 2017)
“This Report provides an overview of recent bail reform measures and related litigation in various jurisdictions across the country. . . . Courts that have considered the constitutionality of money bail practices routinely hold that it is a violation of the Fourteenth Amendment’s Equal Protection and Due Process Clauses to impose money bail without individualized consideration of ability to pay and to incarcerate defendants solely because they are unable to post monetary bail. . . . The following is an overview of bail reform measures in jurisdictions across the country. It is not exhaustive but is intended to highlight the most relevant substantive reforms.”

Model Bail Laws: Re-Drawing the Line Between Pretrial Release and Detention (Center for Legal and Evidence-Based Practices 2017)
“This paper is designed to help persons craft and justify language articulating who should be released and who should be eligible for detention in a purposeful in-or-out pretrial system through a study of the history of bail, the fundamental legal principles, the pretrial research, and the national standards on pretrial release and detention. It does so, in Part I, by providing the answers to a series of questions that every jurisdiction should be asking before embarking on the task of re-drawing the line between pretrial release and detention. These questions, based on the fundamentals of bail, range from elementary (i.e., “What is bail?”) to somewhat complicated (i.e., “How has America traditionally defined ‘flight’ and how did it struggle with both unintentional and intentional detention for noncapital defendants?”) to very practical (i.e., “Can we use the results of actuarial pretrial risk assessment instruments when determining our detention eligibility net?”).”

Moving Beyond Money: A Primer on Bail Reform (Harv. L. Sch. Crim. Just. Pol’y Prog. 2016)
“Moving Beyond Money helps to chart a path forward. It provides guidance on how to structure pretrial decision-making in a way that preserves the integrity of the judicial process and protects public safety while also ensuring fairness, transparency, and efficiency. It outlines some basic steps that jurisdictions can take to mitigate the harmful effects of money bail where it remains in place. It also provides substantial guidance on reform strategies for eliminating money bail altogether. It devotes significant attention to reforms based on “risk-based” approaches to bail, discussing in detail the policy and legal considerations surrounding pretrial supervision, actuarial risk assessment, and preventive detention. Rather than prescribe a uniform approach for all jurisdictions, it seeks to help stakeholders navigate some of the complex questions that arise in this area.”

Navigating the Bail Payment System in New York City: Findings and Recommendations (Center for Court Innovation 2015)
“Approximately 16,000 individuals per year are bailed out of Department of Correction facilities in New York City, in most cases requiring family or friends to make the sometimes lengthy and costly journey to city jails. With funding from the Mayor’s Office of Criminal Justice, researchers at the Center for Court Innovation examined the current bail payment process both within the courts and at Department of Correction facilities. This report documents the current process and provides 17 recommendations to change practice. Based on these recommendations, the city is working to launch the first-ever online bail payment system in partnership with the state courts and has begun implementing a number of other solutions detailed here.”

“Not in It for Justice” How California’s Pretrial Detention and Bail System Unfairly Punishes Poor People (HRW 2017)
“Tens of thousands of people arrested for a wide range of crimes spend time locked up in jail because they do not post bail. Nearly every offense in California is bail-eligible, yet many defendants cannot afford to pay. In California, the majority of county jail prisoners have not been sentenced, but are serving time because they are unable to pay for pretrial release. This report concludes that California’s system of pretrial detention keeps people in jail who are never found guilty of any crime. The state jails large numbers of people for hours and days against whom prosecutors never even file criminal charges. People accused of crimes but unable to afford bail give up their constitutional right to fight the charges because a plea will get them out of jail and back to work and their families. Judges and prosecutors use custody status as leverage to pressure guilty pleas. As one Californian who went into debt to pay fees on $325,000 bail for a loved one who was acquitted said, the actors in California’s bail system are “not in it for justice.””

Out of Sight: The Growth of Jails in Rural America (Vera Institute of Justice 2017)
“As this report will enumerate, it is not simply small counties that have increasingly been the locus of rising local incarceration rates, but rural areas — nonmetropolitan areas defined by low population and distance from major population centers. This is despite rural counties’ substantially lower crime rates in comparison to urban areas. There appear to be two underlying trends. First, as overall rates of pretrial detention have risen nationally, the highest rates now feature most prominently in rural counties across all regions of the country — increasing 436 percent between 1970 and 2013. Second, an escalating number of rural jails — mainly in the South and West — are renting out jail beds to hold people for federal, state, and other local governments. In some cases, jails are even building new capacity unrelated to crime levels in their own jurisdictions to meet jail-bed demands of other agencies. Although the reasons for these two trends are likely numerous, this report explores one possible root: few resources in rural areas. Given that the distribution of scarce state and county resources is likely uneven — favoring those areas with more people — access to critical criminal justice and community services may be spread thin the further away a place is from the various population clusters in a state or county. This means there may be fewer judges to quickly hear cases, less robust pretrial services, and fewer diversion programs available to decrease jail use.”

Outskirts of Hope: Ohio’s Debtors’ Prisons are Ruining Lives and Costing Communities (ACLU 2013)
“On April 4, 2013, the ACLU of Ohio released The Outskirts of Hope, a chronicle of blatantly illegal debtors’ prison activity across the state of Ohio and the many lives that have been impacted. In conjunction with this report, the ACLU has sent letters to seven Ohio courts, calling for an immediate end to these illegal debtors’ prison practices. We have also sent a letter to the Ohio Supreme Court, asking them to enforce the law with statewide guidelines to stop this terrible practice in Ohio.”

Past Due: Examining the Costs and Consequences of Charging for Justice in New Orleans (Vera 2017)
“In 2015, government agencies in New Orleans collected $4.5 million in the form of bail, fines and fees from people involved in the criminal justice system and, by extension, from their families. Another $4.7 million was transferred from the pockets of residents to for-profit bail bond agents. These costs have become the subject of considerable public attention. Because many “users” of the system have very low incomes or none at all, there is growing concern that charging for justice amounts to criminalizing poverty, especially when people who can’t pay become further entangled in the justice system. In 2015, the city spent $6.4 million to incarcerate people who couldn’t pay bail or conviction fines and fees. By focusing on bail decisions and fines and fees assessed at conviction, Past Due, and its accompanying technical report, reveals the costs and other consequences of a system that tries to extract money from low-income people and then jails them when they can’t pay.”

Pay to Play (Common Cause 2017)
“Last winter, Common Cause Maryland [CCMD] chose one industry to investigate in more depth: Bail bonds, the private companies that, for a fee, pledge money or property as bail for the appearance of persons accused in court. Our research on the bail industry demonstrates how private industry spending buys influence. CCMD examined campaign and lobbying spending by the industry, creating an interesting snapshot of how special interests operate.

Maryland is one of the top states for campaign donations by the bail bonds industry, ranking third behind only California and Florida, according to data from FollowtheMoney.org. In fact, when analyzing donations to individual candidates, our two largest recipients of bail bonds donations, Senator Bobby Zirkin and Delegate Joseph Vallario, are the second- and third-highest recipients in the United States. Total giving by the bail bonds industry from 2011 to the present date was $288,550. Giving in the last election cycle totaled $153,300. Giving in the current election cycle is on track to massively overtake that number, having hit $135,250 in just the first two years of the current cycle. Donations in just the last year totaled a staggering $87,100.”

Performance Audit of Utah’s Monetary Bail System (Utah Legislative Auditor General 2017)
“This audit reviews the effectiveness of the two types of monetary bail commonly offered in Utah’s district courts: cash bail and surety bond. Cash bail involves a payment to the courts that is refunded to the defendant if not convicted, or if convicted, could be forfeited and applied to court-related fees. Surety bond involves a non-refundable premium, typically 10 percent of the full bail amount, paid to a commercial surety (a.k.a. bail bond agency). Since the primary objectives of bail are to assure court appearance and community safety, this audit compares the effectiveness of the two monetary bail types in assuring court appearances. Court appearance data also led us to review evidence-based pretrial release practices that enhance community safety as well as the surety bond forfeiture process.”

Pretrial Detention Reform (Judicial Branch of California 2017)
“At the conclusion of this process, the Workgroup determined that California’s current pretrial release and detention system unnecessarily compromises victim and public safety because it bases a person’s liberty on financial resources rather than the likelihood of future criminal behavior and exacerbates socioeconomic disparities and racial bias. With the Chief Justice’s guiding principles as the framework, the Workgroup developed a set of 10 recommendations. These recommendations seek to achieve a just and fair pretrial release and detention system that balances the protection of public safety with the presumption of innocence and due process. The Workgroup recognizes that the release of any person before trial involves risk—as does every pretrial detention. The challenge is to minimize these risks while achieving the goals of maximizing public safety, court appearance, and release of individuals.”

Pretrial Justice: How Much Does It Cost? (PJI 2017)
“This brief summarizes what researchers and practitioners have learned as of January 2017 about the costs of the current system compared to legal and evidence-based improvements such as moving away from money bail, implementing pretrial risk assessment, providing court reminders, and monitoring or supervision.”

Preventive Detention (NCSC 2017)
“Public safety goals are not met when high-risk defendants are released because they can pay the monetary bail set as a condition of release, while poor, low-risk defendants remain in jail because they are unable to pay their monetary bail. As states move away from using monetary bail as the primary condition for pretrial release and toward risk-based pretrial release decision-making, the use of preventive detention under clearly defined circumstances has become an element of pretrial justice reform. Two key tenets of pretrial reform are the presumption of release under the least restrictive conditions and the use of an evidence-based risk assessment to inform those release conditions. In a risk-based system, some defendants will be found to pose too great a risk to public safety under any set of release conditions. Preventive detention of these defendants with strong due process requirements can offer courts a legal and evidence-based way to protect the community during the pretrial period. . . . Twenty-two states and the District of Columbia now authorize preventive detention for specified serious criminal charges through constitutional provisions, statutes, or both. The District of Columbia was the first jurisdiction outside the federal system to institute preventive detention, while New Jersey and New Mexico are the most recent states to do so.”

Price of Freedom: Bail and Pretrial Detention of Low Income Nonfelony Defendants in New York City (HRW 2010)
“This report addresses the pretrial incarceration of New York City defendants accused of nonfelony crimes, mostly misdemeanors. Previously unpublished data provided to Human Rights Watch by the New York City Criminal Justice Agency (CJA)—covering all cases (117,064) of nonfelony defendants arrested in New York City in 2008 that proceeded past arraignment—suggests the extent of the problem: In slightly more than three-quarters (90,605) of the cases defendants were released pending trial on their own recognizance (i.e., without money bail). In most of the cases where bail was set (19,137 of 26,459 cases), the bail amount was $1,000 or less. Nevertheless, despite the relatively low bail amount, the overwhelming preponderance of defendants required to post that bail amount were jailed because they could not do so.”

Prosecutors and Bail: Using Discretion to Build a More Equitable and Effective System (Institute for Innovation in Prosecution 2017)
“An issue brief discussing the ability of prosecutors to devise and implement bail policies and practices that are true to the constitutional protections of equality under the law and innocent until proven guilty.”

Public Opinion Poll Findings on Jails and Local Justice Systems (RTI International and Zogby Analytics 2017)
“A new nationwide poll on perceptions of jails and local criminal justice systems reveals that the vast majority of Americans believe the role of jails should not be to punish, and shows broad support for treatment and rehabilitation—particularly for people committing non-violent offenses and for those with serious mental illness.”

Punishment Is Not a “Service” (Chicago Community Bail Fund 2017)
“Punishment is Not a “Service” details how punitive pretrial conditions operate in Cook County and includes individual experiences of how these restrictions have caused severe and unnecessary hardship for people who are legally innocent. These stories demonstrate how pretrial conditions undermine the ability of people to support themselves and their families while their case is pending in many of the same ways that incarceration does. They are stories of lost jobs, restricted movement, inability to support children and other dependents, and pressure to plead guilty.”

Rational and Transparent Bail Decision Making: Moving from a Cash-Based to a Risk-Based Process (PJI 2012)
“This White Paper takes the position that most of the money spent to house defendants who cannot post a bond is unnecessary to achieve the purposes of bond – to protect the safety of the community while the defendant’s case is pending, and to assure the appearance of the defendant in court. With local jurisdictions laying off of teachers, police officers and firefighters and cutting back on vital services because they do not have the money to pay them, this waste of money is unconscionable.”

Recommendations Concerning the Bail Bond Industry in the State of New York (NYC Bar 2017)
“The Criminal Justice Operations Committee, along with the Corrections and Community Reentry Committee and Criminal Courts Committee, issued a report recommending the elimination of the for-profit commercial bail bond industry in New York. In so doing, the City Bar joins the American Bar Association, the National Association of Pretrial Services Agencies and the New York City Criminal Justice Agency in this recommendation, noting that the continued use of for-profit bail bonds “creates discriminatory standards of release in New York’s notoriously problematic bail system.” Indeed, the successful use of charitable bail bonds, credit card bail, and supervised release programs demonstrate the efficacy of alternative, non-commercial bail practices. “The City Bar joins Governor Cuomo in condemning for-profit policies that target the poor, and urges the legislative changes recommended by CJA and the ABA to eliminate commercial bonds in New York.””

Rethinking Jails, Reframing Public Defense: Making the Case for the System-Wide Benefits of Effective Defenders (NLADA 2017)
“In contradiction with its core values of liberty and equal justice, America incarcerates almost a quarter of the world’s prisoners. Local jails have quietly become one of the greatest drivers of this problem. They hold approximately 650,000 people, roughly two thirds of whom have never been convicted of a crime. People in jail are disproportionately people of color and economically disadvantaged, and though many pose no danger to public safety or flight risk, they face prolonged loss of liberty in addition to devastating life-altering consequences. The Safety and Justice Challenge is a $100 million initial investment by the John D. and Catherine T. MacArthur Foundation (MacArthur) to reduce over-incarceration and address racial disparities by changing the way America thinks about and uses jails.”

Selling Off Our Freedom: How Insurance Corporations Have Taken Over Our Bail System (ACLU 2017)
“This report tells the rarely heard and even less understood story of how the bail industry has corrupted our constitutional freedoms for profit: the freedom from exploitation in bail, the guarantee of being recognized as innocent until proven guilty, and the guarantee of the equal application of the law to all people.”

State of Magistrate Court: 2016-17 Data Collection Period (Court Watch NOLA 2017)
“Court Watch NOLA (CWN) is a non-profit organization with the mission of promoting reform in the Orleans Parish criminal court system through civic engagement and courtroom observation. In May 2016, CWN began monitoring Orleans Parish Magistrate Court, where pre-trial release and bail are initially determined for all state felony and misdemeanor cases. For the purposes of this report, CWN volunteers observed Orleans Parish Magistrate Court from May 2016 to May 2017, viewing a total of 1,099 defendants’ first appearances. This report explores these first appearances, the people who work in the magistrate court, the bail and bond system, and New Orleans’s move towards a stronger, evidence-based pre-trial system.”

State of Pretrial Justice in America 2017 (PJI 2017)
“The State of Pretrial Justice in America is the Pretrial Justice Institute’s first comprehensive effort to gauge pretrial outcomes across the United States. It measures three basic indicators for each state with the goal of setting a baseline against which progress can be tracked: the rate at which people are detained before trial; the extent to which each state uses evidence-based pretrial assessment; and whether or not a state has functionally eliminated money bail. This report is intended to stimulate further conversation about reform possibilities and action. Already, great strides are being taken by courageous stakeholders across the country. When those strides result in maximized liberty, maximized safety, and maximized appearance in court without methods that cause harm, grades will improve and a new national standard of pretrial justice will emerge.”

Targeted Fines and Fees Against Communities of Color (U.S. Comm’n Civ. Rts. 2017)
“The report examines the Department of Justice’s enforcement efforts regarding municipal court reforms with respect to the targeted imposition of fines and fees. The Commission heard testimony from the Department of Justice, experts, and scholars in the field and a majority of the Commission made findings and recommendations. Key findings include that unchecked discretion or stringent requirements to impose fines or fees can lead and have led to discrimination and inequitable access to justice when not exercised in accordance with the protections afforded under the Due Process and Equal Protection Clauses of the United States Constitution. In addition, if a jurisdiction’s primary goal is to generate revenue rather than promote public safety, it can create an incentive for law enforcement to issue as many citations as possible, contrary to the pursuit of justice. Nonetheless, many jurisdictions today require or permit courts and municipalities to impose and collect an array of fees for criminal as well as civil justice activities in addition to government programs unrelated to courts.”

Transformative Bail Reform: A Popular Education Curriculum (Movement for Black Lives 2016)
“This curriculum is the product of a convening of over 20 black led base building organizations who came together to discuss the implications of bail and bail reform on black communities across the country.”

Trends in Admissions to the New York City Department of Correction, 1995-2015 (Misdemeanor Project at John Jay College 2016)
“The Misdemeanor Justice Project (MJP) is pleased to publish this report, Trends in Admissions to the New York City Department of Correction, 1995-2015, focused on individuals admitted into the custody of the New York City Department of Correction (DOC). With this report, we turn our attention to trends in corrections, specifically the New York City DOC which houses individuals charged with crimes and awaiting trial, serving short sentences, being held on warrants, or for other reasons. The City’s correctional system serves as another critical point of contact between the public and the criminal justice system, but compared to police activities, is often neglected in policy discussions about crime and justice in New York City. This report will examine the “front door” of the correctional system to provide a better understanding of the longitudinal trends in admissions to the DOC. This report is split into two sections. The first section provides an in-depth portrait of admissions to corrections in 2015, breaking out the data by demographics (i.e. gender, age, and race), legal status, and criminal charges. The second section contextualizes 2015 admissions by examining these characteristics (demographics, legal status, and charges) longitudinally to see how they have changed during the two decades of our study (1995 to 2015).”

Trends in Custody: New York City Department of Correction, 2000-2015 (Misdemeanor Project at John Jay College 2017)
“The Misdemeanor Justice Project (MJP) is pleased to publish this second report, Trends in Custody: New York City Department of Correction, 2000-2015, focused on individuals admitted into the custody of the New York City Department of Correction (DOC). Our first report using the DOC data, released in December, 2016, examined the “front door” of the corrections system. We examined trends in annual admissions by demographic groups, legal status, and charge categories, from 1995 to 2015. That report sets the background for the current analyses. In this report, we go beyond the front door to better understand the patterns of custody in the Department of Correction for those discharged between 2000 and 2015. We first examined “length of stay,” meaning the amount of time spent in custody under different circumstances. Specifically, we present findings on the changes in the length of stay for periods of pretrial detention, time serving a city sentence (under one year), held on a parole violation, or moving to a city sentence following a period of pretrial detention. Next, we documented the amount of bail set by the courts by demographics, charge level and category, borough, and discharge category. Further, we examined length of stay for this same breakdown. Finally, we explored how individuals held by the DOC are discharged (i.e., by making bail, being sentenced to a prison term, or being released for other reasons). In other words, this report examines the period between the front door of corrections and discharge from corrections custody.”

Trends in State Courts: Fines, Fees, and Bail Practices—Challenges and Opportunities (NCSC 2017)
“This report from the National Center for State Courts (NCSC), as part of its Report on Trends in the State Courts series, addresses the impact of court-ordered financial obligations on low-income communities and focuses on what can be done to confront the effect of such fines, fees, and bail practices on these groups. The report discusses the history of bail reform in the United States, the issues surrounding supervision fees for children on probation, the racial impact of criminal justice debt, and how NCSC’s revised Measure 7 in CourTools can help courts reassess their practices for imposing and enforcing court-ordered financial obligations.”

Upgrading North Carolina’s Bail System (PJI 2016)
“The North Carolina Commission on the Administration of Law and Justice contracted, through the National Center for State Courts with the Pretrial Justice Institute (PJI) to produce a report containing evidence-based recommendations to improve North Carolina’s pretrial justice system. . . . Bail: Based on legal and historical research as well as accepted notions underlying pretrial social science research, “bail” is defined as a process of conditional pretrial release. Technically, bail is not money. States should not be faulted for blurring the concepts of money (a condition of release) and bail (release) because for roughly 1,500 years, paying money (or giving up property before that) was the only condition used in England and America to provide reasonable assurance of court appearance. Nevertheless, recognizing that bail is not money helps states move forward in their efforts to improve pretrial justice without unnecessary confusion.”

Statistics[35]

American Indian and Alaska Natives in Local Jails, 1999-2014 (BJS 2017)
“Describes the American Indian and Alaska Natives (AIAN) population held in local jails, including national and state level estimates, characteristics of adult AIAN inmates, and comparisons to all other races and Hispanic origin. The report also presents data on AIAN inmates confined in Indian country jails and state and federal prisons. Findings are based on data from BJSs Annual Survey of Jails (2000-14), Census of Jails (1999, 2005, and 2013), National Inmate Survey (2011-12), Survey of Jails in Indian Country (1999 and 2014), and the National Prisoner Statistics program (1999, 2005, and 2014).”

Census of Jails: Population Changes, 1999–2013 (BJS 2015)
“Presents state-level estimates of the number of inmates confined in local jails at year end 2013, by sex, race, and Hispanic origin. This report provides information on changes in the incarceration rate, average daily population, admissions, expected length of stay, rated capacity, percent of capacity occupied, and inmate-to-correctional officer ratios. It also includes statistics, by jurisdiction size, on the number of inmates confined to jail and persons admitted to jail during 2013. It features a special section on the 12 facilities that functioned as jails for the Federal Bureau of Prisons.”

County Jails at a Crossroads (NACo 2015)
“Counties are the front door to the criminal justice system. Counties uphold the law, prosecute crime, ensure due process during criminal proceedings and protect public safety by detaining and incarcerating individuals who are a risk to community safety and security. Overall, counties invest $70 billion dollars annually on law enforcement, court and legal services and county corrections systems. County court systems are responsible for processing and resolving criminal cases, with key players including judges, district attorneys and public defenders. Counties own 87 percent of all jails in the United States receiving more than 700,000 individuals who have been arrested; booking and processing them; and, contingent on decisions made within the court system, supervising them in a secure jail facility (See Map 1). Because of their position within the courts and corrections systems, counties play an unmatched role in the administration of justice.”

Data Collection: Survey of Inmates in State Correctional Facilities (BJS)
“Conducted periodically, the survey provides information on individual characteristics of prison inmates, current offenses and sentences, characteristics of victims, criminal histories, family background, gun possession and use, prior drug and alcohol use and treatment, medical and mental health history and treatment, educational programs and other services provided while in prison, as well as other personal characteristics. Data are collected through personal interviews with a nationally representative sample of inmates in state prisons. The survey utilizes a two-stage sample design in which prisons were selected in the first stage and inmates within prisons are selected in the second stage.”

Incarceration Trends Project (Vera Institute of Justice)
“Incarceration Trends aims to inform the public dialogue, advance research, and help guide change by providing easily accessible information on the number of individuals in jail and prison for every county in the United States.”

Jails in Indian Country 2015 (BJS 2016)
“Describes jails, confinement facilities, detention centers, and other correctional facilities operated by tribal authorities or the Bureau of Indian Affairs. This report presents trends in Indian country jails, including inmate characteristics and offense type; midyear, peak, and average daily population; and admissions and expected average length of stay at admission. It provides data on rated capacity, facility crowding, and jail staffing. Deaths in custody are also included. Findings were based on BJS’s 2015 Survey of Jails in Indian Country.”

Jail Inmates at Midyear 2014 (BJS 2015)
“Presents estimates of the number of jail inmates at midyear 2014 by sex, race, Hispanic origin, and conviction status. This report provides estimates of year-to-year changes from midyear 2000 to midyear 2014 in the number of inmates held, average daily population, rated capacity of local jails, and percent of capacity occupied. It also includes statistics, by jurisdiction size, on changes in the number of inmates, number of admissions, and weekly turnover rate between 2013 and 2014. Estimates and standard errors are based on data collected from the Annual Survey of Jails.” See also Prison and Jail Inmates at Midyear (BJS).

More People Were Arrested Last Year Over Pot Than For Murder, Rape, Aggravated Assault and Robbery — Combined, Washington Post, Sept. 26, 2017
“In 2016 more people were arrested for marijuana possession than for all crimes the FBI classifies as violent, according to 2016 crime data released by the agency on Monday. Marijuana possession arrests edged up slightly in 2016, a year in which voters in four states approved recreational marijuana initiatives and voters in three others approved medical marijuana measures.”

PREA Data Collection Activities, 2017 (BJS 2017)
“Describes the Bureau of Justice Statistics’ (BJS) activities to collect data and report on the incidence and effects of sexual victimization in correctional facilities, as required by the Prison Rape Elimination Act of 2003 (PREA) (P.L. 108-79). The report summarizes BJS’s efforts during 2016 and 2017, which included item-by-item assessments of the National Survey of Youth in Custody (NSYC) and the National Inmate Survey (NIS), and an in-depth analysis of facility- and individual-level correlates of sexual victimization in the juvenile facilities. The report also discusses the activities BJS undertook to obtain data collection agents for both the NSYC-3 and NIS-4, and it highlights the data collection activities completed for the Survey of Sexual Victimization (SSV). This report meets the PREA requirement to report on BJS’s activities for the preceding calendar year by June 30 of each year.”

Pretrial Criminal Justice Research (LJAF 2013)
“This research demonstrates how critical it is to focus on the pretrial phase of the criminal justice system. Pretrial decisions made by judges, police, and prosecutors determine, as Caleb Foote stated in 1956, “mostly everything.” These studies demonstrate that pretrial decisions may impact whether or not a defendant gets sentenced to jail or prison, and for how long; that an increased length of pretrial detention for low and moderate-risk defendants is associated with an increased likelihood that they will reoffend both during the pretrial period and two years after the conclusion of their case; and that supervision may reduce failure to appear rates and, when done for 180 days or more, new criminal activity.”

Pretrial Release and Misconduct in Federal District Courts 2008-2010 (BJS 2012)
“Presents findings on pretrial release and misconduct among defendants in federal district courts for the combined fiscal years 2008, 2009, and 2010. The report examines the pretrial process in federal courts, including the pretrial release rate, the type of pretrial release or detention, and the conditions of pretrial release. It explores the most serious offense charges, criminal history, and demographic characteristics of released defendants. Also, it presents rates of pretrial misconduct, including technical violations, missed court appearances, and rearrests for new offenses, by most serious offense charges, types of release, demographic characteristics, and criminal history of defendants.”

Pretrial Release of Felony Defendants in State Courts (BJS 2007)
“Presents findings on the pretrial release phase of the criminal justice process using data collected from a representative sample of felony cases filed in the 75 largest U.S. counties in May during even-numbered years from 1990 to 2004. It includes trends on pretrial release rates and the types of release used. Pretrial release rates are compared by arrest offense, demographic characteristics, and criminal history. Characteristics of released and detained defendants are also presented. Rates of pretrial misconduct including failure to appear and rearrest are presented by type of release, demographic characteristics, and criminal history.”

Sexual Victimization in Prisons and Jails Reported by Inmates, 2011-12 Update (BJS 2014)
“Presents data from the National Inmate Survey (NIS), 2011-12, conducted in 233 state and federal prisons, 358 local jails, and 15 special correctional facilities (operated by U.S. Armed Forces, Indian tribes, or U.S. Immigration and Customs Enforcement (ICE)) between February 2011 and May 2012, with a sample of 92,449 inmates age 18 or older and 1,738 inmates ages 16 to 17. The report ranks facilities according to the prevalence of sexual victimization, as required under the Prison Rape Elimination Act of 2003 (P.L. 108-79). The prevalence of victimization, as reported by inmates during a personal interview, is based on sexual activity in the 12 months prior to the interview or since admission to the facility, if less than 12 months. This report includes estimates of nonconsensual sexual acts, abusive sexual contacts, inmate-on-inmate and staff-on-inmate victimization, and level of coercion. It provides the first-ever national-level estimates of sexual victimization of juvenile inmates ages 16 to 17 held in adult facilities. The report also presents findings on reported sexual victimization by selected demographic and other inmate characteristics, including measures of serious mental illness for the first time.”

World Pre-Trial / Remand Imprisonment List (Institute for Criminal Policy Research 2017)
“This third edition of the World Pre-trial/Remand Imprisonment List shows the number of pre-trial/remand prisoners held in penal institutions in 216 prison systems in independent countries and dependent territories. The List also shows the percentage of pre-trial/remand prisoners within each national prison population and the number of pre-trial/remand prisoners per 100,000 of the national population (the pre-trial/remand prison population rate). The information is the latest available at the end of November 2016. In addition, the last two tables provide data, by continent, on pre-trial/remand prisoner totals and rates, and trends since about 2000. This List, together with the World Prison Population List (11th edition published in February 2016) and the World Female Imprisonment List (3rd edition published in September 2015) complement the information held on the World Prison Brief online database at www.prisonstudies.org. The World Prison Brief is updated monthly.”

Manuals, Tools and Guides

Bail Advocacy in New York State (Bronx Defenders 2011)
A guide to bail practices and laws in New York State including: history of bail; types of bail; posting bail; examination of surety; setting bail; bail reviews; bail pending appeal; issues in current bail practice; forms and sample motions.

Bail Trap Game (Brave New Films)
“We’re taking it back to the old school with this 8-bit game! Select a character, get arrested, and see how the consequences of money bail play out for you. Disclaimer: Money bail is NOT a game. For many, the debt they find themselves in has life altering affects, making basic needs and means for survival inaccessible. The reality is this often perpetuates a cycle of criminality, increases the likelihood for recidivism, and feeds into mass systemic imprisonment of those living in poverty.”

Colorado Bail Book: A Defense Practitioner’s Guide to Adult Pretrial Release (NACDL 2015)
“In 2013, the Colorado legislature enacted new laws designing a pretrial system that moves away from the use of money bail and favors individualized determinations and the use of evidence-based predictors. The change puts Colorado in line with national policy recently advanced by the United States Department of Justice in its statement of interest in Varden v. City of Clanton, condemning as a violation of the Equal Protection Clause of the Fourteenth Amendment the use of set bond schedules that fail to take into account individual circumstances.

Colorado defenders must use this new legislation to the advantage of their clients. Obtaining pretrial release is an essential part of the promise of Gideon that defense lawyers are committed to provide. This Manual is designed to give practitioners the guidance needed to achieve pretrial release for clients. It presents the new Risk Assessment tool, which courts will be using to determine whether to release the accused pretrial, reviews the research in support of the Risk Assessment tool, and discusses how best to use the tool to advantage clients. The Manual discusses how to obtain information necessary to fully utilize the Risk Assessment tool through interview and investigation. The Manual then outlines the provisions of the new bail statutes and highlights relevant case law and Constitutional provisions, before turning to a discussion of some problem areas, such as onerous conditions of release, the required use of GPS tracking devices, and victims’ rights to notice of change of conditions. Finally, the Manual reviews the steps a practitioner must take to appeal an adverse bail determination, and outlines the case law and complaint process regarding bail bondsmen.”

Kentucky Pretrial Release Manual (Kentucky DPA 2013)
“The publication of this Pretrial Release Manual – along with renewed emphasis on bail advocacy at DPA training and educational events, and the greatest level of collaboration with other constituents in the criminal justice system who promote the value of pretrial justice (including, particularly, the Administrative Office of Courts’ Pretrial Services Division) – heralds the arrival of the most comprehensive attempt to date to maximize the efforts in obtaining the pretrial release of the accused. This Manual serves this attempt by providing motivational, instructional and practical materials for use by the criminal practitioner whose client is in jail.”

Lawful Collection of Legal Financial Obligations [Bench Card] (National Task Force on Fines, Fees and Bail Practices)
“Courts may not incarcerate a defendant/respondent, or revoke probation, for nonpayment of a court-ordered legal financial obligation unless the court holds a hearing and makes one of the following findings: 1. The failure to pay was not due to an inability to pay but was willful or due to failure to make bona fide efforts to pay; or 2. The failure to pay was not the fault of the defendant/respondent and alternatives to imprisonment are not adequate in a particular situation to meet the State’s interest in punishment and deterrence. If a defendant/respondent fails to pay a court-ordered legal financial obligation but the court, after opportunity for a hearing, finds that the failure to pay was not due to the fault of the defendant/respondent but to lack of financial resources, the court should consider alternative measures of punishment other than incarceration. Bearden v. Georgia, 461 U.S. 660,667-669 (1983). Punishment and deterrence can often be served fully by alternative means to incarceration, including an extension of time to pay or reduction of the amount owed. Id. at 671. Court-ordered legal financial obligations (LFOs) include all discretionary and mandatory fines, costs, fees, state assessments, and/or restitution in civil and criminal cases.”

Mayor’s Office of Criminal Justice Announces New Tools to Make Paying Bail Easier, Reducing Unnecessary Jail Time, Mayor’s Office of Criminal Justice, May 13, 2016
“The Mayor’s Office of Criminal Justice today announced several new tools that will make it easier for defendants to post bail. The resources – developed as part of the Bail Lab– include ATMs in all of New York City’s criminal courthouses and an easy-to-understand guide to paying bail that describes how to send bail money to inmates and obtain a bail refund.”

New Jersey Pretrial Justice Manual (NACDL 2017)
“Obtaining pretrial release is an essential part of the promise of Gideon that defense lawyers are committed to provide. This Manual is designed to give practitioners the guidance needed to achieve pretrial release for clients. It tells the story of how New Jersey came to reform its system of pretrial release and detention. It also presents the new risk assessment instrument and a decision-making framework, which courts will be using to determine whether, and under what conditions, to release the accused pretrial. Because litigating pretrial release has such a critical impact on outcomes in criminal cases, the Manual provides a series of tools for litigating pretrial release, including: the initial client interview, taking advantage of the risk assessments, understanding the new statutes and applicable constitutional protections, and utilizing New Jersey case law on pretrial release. The Manual also provides advice for how to advocate on behalf of a client at both detention hearings and hearings designed to set conditions of release, before turning to a discussion of some problem areas, such as onerous conditions of release, costs of supervision, and the rights of domestic violence victims to receive notice of change of conditions. Finally, the Manual reviews the steps a practitioner must take to appeal an adverse determination regarding release conditions or detention.”

  • SUBJECT SOURCES

Bail Funds, Projects and Services

3DaysCount: Commonsense Pretrial (PJI)
“The 3DaysCount campaign is a nationwide initiative to: Reduce unnecessary arrests that destabilize families and communities; Replace discriminatory money bail with practical, risk-based decision-making; and Restrict detention (after due process) to the small number of people who pose unmanageable risks if released. And we will do this in 20 states by 2020.”

Bail Nullification, 115 Mich. L. Rev. 585 (2017)
“The longstanding scholarly debate over the ability of community members to engage in nullification has been confined to the study of jury nullification — when jurors acquit someone despite knowledge of their legal guilt. This Article explores the possibility of community nullification beyond the jury by analyzing the growing and unstudied phenomenon of community bail funds, which post bail for strangers based on broader beliefs regarding the overuse of pretrial detention. When a community bail fund posts bail, it can serve the function of nullifying a judge’s determination that a certain amount of the defendant’s personal or family money was necessary to ensure public safety and prevent flight. This growing practice — what this Article calls “bail nullification” — is powerful because it exposes publicly what many within the system already know to be true: that although bail is ostensibly a regulatory pretrial procedure, for indigent defendants it often serves the function that a real trial might, producing guilty pleas and longer sentences when an individual cannot afford to pay their bail. By examining the ways in which community bail funds serve the functions that a nullifying jury might — allowing popular participation in an individual case to facilitate larger resistance to the policies and practices of state actors — this Article argues that community bail funds have the potential to change how local criminal justice systems operate on the ground, shifting and shaping political and constitutional understandings of the institution of money bail. Community bail funds give a voice to populations who rarely have a say in how criminal justice is administered, especially poor people of color. And the study of bail funds helps point toward other ways in which bottom-up public participation can help create a criminal justice system that is truly responsive to the communities that it is ultimately supposed to serve.”

Bail Reform Initiative (Bronx Defenders)
“The Bronx Defenders has spearheaded a city-wide initiative to radically change the way judges set bail in New York. We have created teaching materials and conducted trainings for public defenders, private attorneys and judges on alternative forms of bail. As a result of our initiative in the Bronx, 12 judges have used alternative forms of bail, resulting in the pre-trial release of countless clients.”

Betterbail
“Betterbail was founded in 2015 to help New Yorkers make bail faster. The platform connects users with a bail bond through a local bondsman, guaranteeing fast service and a fair price. The core team was motivated by the realization that the existing bail process is slow and prone to fraud. Far too many New Yorkers were being jailed needlessly, as their families and friends worked to coordinate bail or struggled with unreliable bondsmen. Families were being overcharged, defendants were being rearrested wrongfully, and collateral was stolen regularly. The idea behind Betterbail is simple. By connecting New Yorkers with a vetted bondsmen, we can guarantee immediate, fast service and a fair price. We promote 100% transparency around our prices, ensuring that New Yorkers never pay above the rate set by law. The team is also committed to making the process as simple as possible. All paperwork and forms can be completed entirely online. A process that used to take hours or even days can now be completed in minutes, even on a smartphone. Our goal is to make bail faster and fairer for all New Yorkers.” See also Startup Seeks to Bring Bail Bond Process Online, ABA J., Sept. 15, 2016.

Bronx Charity Founder Wants to Pay Bail for Poor Defendants Nationwide, N.Y. Times, Nov. 13, 2017
“In the last 10 years, a small charity called the Bronx Freedom Fund has donated bail money to thousands of poor New Yorkers charged with crimes, freeing them from jail and helping them avoid the dispiriting delays of backlogged local courts as they wait to go on trial. Now, after a decade in operation, the founder of the Freedom Fund is set to announce a new and unprecedented effort: the nation’s first fund designed to post bail for more than 150,000 indigent defendants being jailed across the country. Known as the Bail Project, the undertaking is scheduled to open offices in St. Louis and Tulsa, Okla., in January and spread to more than three dozen cities in the next five years, according to Robin Steinberg, the former director of the free legal clinic Bronx Defenders, who ran the fund in the Bronx and will now oversee the national initiative.”

Bronx Freedom Fund
“We are a nonprofit with a revolving fund to pay bail for people accused of misdemeanors. Our goal is to keep people in their communities while they await trial – and to fight for a system that no longer criminalizes poverty.”

Brooklyn Community Bail Fund
“Bail siphons money away from individuals and families struggling to make ends meet and presents those who can’t pay with a cruel choice: plead guilty as charged or go to jail. Every year millions of Americans are incarcerated simply because they can’t post bail, including 45,000 people in New York City alone. By paying bail for New Yorkers who can’t afford it, we are keeping people out of jail, protecting the presumption of innocence, and proving that cash bail is not only unjust, but also unnecessary.”

Brooklyn Justice Initiatives
“Brooklyn Justice Initiatives seeks to forge a new response to misdemeanor and non-violent felony defendants in Brooklyn, New York. Operating out of Brooklyn Criminal Court on Schermerhorn Street, Brooklyn Justice Initiatives is staffed by a team of court-based social workers, case managers, and court liaisons. By providing meaningful pre-trial supervised release and post-conviction sentencing options, Brooklyn Justice Initiatives seeks to use a misdemeanor arrest as a window of opportunity to change the direction of a defendant’s life and avoid the harmful effects of incarceration.”

Chicago Community Bond Fund
“The Chicago Community Bond Fund (CCBF) pays bond for people charged with crimes in Cook County, Illinois. Through a revolving fund, CCBF supports individuals whose communities cannot afford to pay the bonds themselves and who have been impacted by structural violence. Inability to pay bond results in higher rates of conviction, longer sentences, loss of housing and jobs, separation of families, and lost custody of children. By paying bond, CCBF restores the presumption of innocence before trial and enables recipients to remain free while fighting their cases. CCBF also engages in public education about the role of bond in the criminal legal system and advocates for the abolition of money bond. CCBF is committed to long-term relationship building and organizing with people most directly impacted by criminalization and policing.”

Community Bail Funds Reclaim Bail Decision Power (PJI 2016)
“PJI [Pretrial Justice Institute] recently hosted a webcast on Community Bail Funds for people involved with, interested in, or thinking of starting them. Speakers included PJI Executive Director Cherise Fanno Burdeen, Bronx Freedom Fund Project Director Ezra Ritchin, and Brooklyn Community Bail Fund Executive Director Peter Goldberg. A recording of the event can be found here.”

Comparing 4 ‘Social Impact Bond’ Projects, San Francisco Public Press, Oct. 24, 2017
“Governments have been looking for an effective, cost-efficient way to house their homeless populations, especially the high-need individuals straining public resources while out on the streets. But many are hesitant to commit significant taxpayer money to the long-term interventions that service providers insist are necessary. Meanwhile, among privately run single-room occupancy facilities outside the master-leasing program, around 1 of every 7 rooms has been vacant, according to the most recent data available from the city Department of Building Inspection. Although they all share a common motivation and goal of helping to house homeless people, each model varies in its specific target population, project components and success measurements.”

Connecticut Bail Fund

“By posting bail for our clients, Connecticut Bail Fund allows them to return home, keep their jobs, retain custody of their children, and fight their cases in court. Additionally, we pair each client with a Community Navigator, who orients the client to social services in the community and ensures they meet their court obligations. Because bail is returned after a defendant appears in court, each dollar in our revolving fund helps individual after individual, community after community.”

Establishing a Charitable Bail Fund in NYS: A Step-by-Step Guide (Bronx Freedom Fund)
“In July of 2012, with the passage of the Charitable Bail Act, which amended Article 68 of New York’s insurance law to allow not-for-profit bail funds, New York’s legal landscape changed in an important way. Now, nonprofit organizations certified by the Department of Financial Services can post up to $2000 bail for misdemeanor defendants. This new law, championed by The Bronx Defenders and The Bronx Freedom Fund, will fill an important gap for people charged with minor crimes who might otherwise languish in jail because of their poverty. Because for-profit bail bond companies profit from fees based on the bail amount, they frequently refuse to write bonds in cases where their fees would be $200 or less, leaving those at the very bottom of the economic heap – those held on small amounts of bail – without any recourse.”

Finally Some Improvement, But Will It Accomplish Anything? An Analysis of Whether the Charitable Bail Bonds Bill Can Survive the Ethical Challenges Headed Its Way, 40 Fordham Urb. L.J. 2013 (2013)
“While the Charitable Bail Bonds Bill is certainly a valiant attempt to promote equity for indigent defendants who are vulnerable to pretrial incarceration, it remains to be seen whether the Bill will accomplish anything. It is plausible that the Bill will be rendered less effective than anticipated if an attorney’s involvement with the charitable organization is deemed to be unethical pursuant to New York’s Rules of Professional Conduct. Although non-profit organizations that are unaffiliated with legal services organizations can post bail for indigent individuals without worrying about ethical constraints, it is unclear whether attorneys, like those at the Bronx Defenders, can abide by standards of ethics while also creating or working with a charitable organization to post bail for their clients. Part I of this Note addresses the plight of indigent criminal defendants, attorneys’ efforts to reduce their vulnerability, and the Charitable Bail Bonds Bill and its effort to promote alternatives to for-profit bail bondsmen. Part II enumerates the ethical questions that are likely to arise once attorneys at legal services organizations, like those at the Bronx Defenders, begin working with charitable corporations who post bail for the attorney’s clients. Part III seeks to resolve the ethical questions that are still left unanswered in the wake of People v. Miranda and the ratification of the Charitable Bail Bonds Bill.”

Immigrant Bail Fund
“Undocumented immigrants are often taken away from their communities and held in jail while they wait for a resolution on their immigration case. In jail, they endure degrading conditions for weeks, months, or years. The Immigrant Bail Fund pays bond for immigrants who cannot afford it, so they can return to their neighborhoods, families, and jobs as they wait for trial. As a New Haven-based organization, we focus on immigrants who live in Connecticut.”

Long Island Launches Innovative Bail Fund, Long Island Report, Dec. 22, 2016
“[A]s of Nov. 14th, a new Suffolk County Bail Fund was established. This program aims to diminish the number of defendants who fall victim to incarceration because of unpaid bail. This bail fund is Long Island’s first bail fund program for low-income defendants who are accused of committing misdemeanor crimes. The program was mobilized by the Bronx Freedom Fund and Brooklyn Bail Fund. The Bronx Freedom Fund is the first established bail fund program in New York State. They strive to help other communities start their own bail funds in hopes of making it a national organization.”

Major Expansion of CJA’S Bail Expediting Program Announced, NYC Crim. Just. Agency News, Sept. 5, 2017
“On September 1 the New York City Mayor’s Office of Criminal Justice announced the expansion of CJA’s bail expediting program (BEX), which for over 30 years has been helping people held on small amounts of bail to gain release in the City’s four largest boroughs. BEX is not a bail fund, but its staff contact friends and relatives of people who were not able to make bail at arraignment, and then work with them to facilitate bail making. This includes making sure that defendants are not bused to Rikers Island before someone can arrive with the bail money. In recent years, BEX has been instrumental in helping about 1,300 people each year to avoid jail.”

Mama’s Bail Out, Pretrial Justice Institute Blog, May 2, 2017
“This year a coalition of nearly 20 advocacy and social justice organizations are stepping up to do something about the problem. In the week prior to Mother’s Day, the groups will take part in National Mama’s Bail Out Day, a coordinated effort initiated by the Atlanta-based Southerners on New Ground, which developed the idea after noticing how many women were in jail unconvicted. The Bail Out is modeled after community bail funds that pay money bail for community members at no expense to the individual. These funds have demonstrated that requiring arrested people to pay money in order to get out of jail before trial is an unnecessary practice that results in the purposeless detention of poor and working-class people. Groups like the Brooklyn Bail Fund, a participant in the Mama’s Bail Out action, report a 95 percent court appearance rate and their clients are twice as likely to have their cases dismissed or resolved favorably.”

Massachusetts Bail Fund
“The Massachusetts Bail Fund pays up to $500 bail so that low-income people can stay free while they work towards resolving their case, allowing individuals, families, and communities to stay productive, together, and stable. The Massachusetts Bail Fund is committed to the harm reduction of freeing individuals serving pre-trial sentences, and to abolishing pre-trial detention in the long-term.​ Massachusetts jails are filled with people awaiting trial simply because they cannot afford bail. Bail leads to longer incarcerations times, lost jobs, lost housing, and devastated families. The Massachusetts Bail Fund provides up to $500 bail for low-income individuals.”

National Bail Fund Network
“The National Bail Fund Network is a new national project that works with organizers, advocates, and legal providers across the country that are using, or contemplating using, community bail funds as part of efforts to radically change local bail systems and reduce incarceration. The Network was established in September 2016 as a project of the Brooklyn Community Bail Fund with the support of Open Philanthropy’s Criminal Justice Reform Project. The Network was created in response to an increasing interest in replicating and expanding the bail fund model across the country. We saw the potential for the work of bail funds to be the tip of the spear for local and state policy reform within multi-pronged bail reform campaigns. In addition, we recognized that bail funds’ catalytic potential could be lost if they were created haphazardly. The Network is built upon the important work of bail funds assisting individuals attain their freedom while building community capacity and a coordinated advocacy force.”

National Bail Out
“Everyday an average of 700,000 people are condemned to local jails and separated from their families. A majority of them are there simply because they cannot afford to pay bail. The organizations involved in the National Bail Out are working to end money bail and in the meantime get as many people out of cages and back to their families as we can. Thanks to your overwhelming love and generosity we have bailed out nearly two hundred people and provided needed housing, mental health and treatment support. While we were able to bring some of our people home, tens of thousands of our loved ones remain caged in local jails simply because they cannot afford to buy their freedom.”

National Movement Hopes to Help Hundreds of Thousands Jailed Because They Can’t Afford Bail, Truthout, Dec. 27, 2016
“For the nearly 8,000 people locked up in Cook County jail, and the 2,400 on house arrest, the presumption of innocence until proven guilty effectively does not exist. Roughly 95 percent of those incarcerated have not faced trial or conviction of any kind, the vast majority of them ensnared simply because they are unable to afford bond. Those forced to languish in indefinite detention are disproportionately African American, and their pretrial punishments can permanently set their lives off-course, causing them to lose jobs, custody of their children, their housing, and even their lives. Now, a group of formerly incarcerated people, movement lawyers and concerned community members in Chicago are seeking to intervene in this humanitarian crisis by pooling collective resources to free people from Cook County jail. Calling themselves the Chicago Community Bond Fund (CCBF), the all-volunteer group just announced it has freed 50 people from jail or house arrest, using a revolving fund.”

None of Their Business: The Need for Another Alternative to New York’s Bail Bond Business, 19 J. L. & Pol’y (2010)
“Part I of this Note will describe the significance of the pretrial period to accused individuals, along with some of the early efforts to make the pretrial system more equitable and the limits of those efforts. Part II will discuss Vera’s bail bond agencies, which attempted to assist a high-risk portion of the pretrial population. Part III analyzes the policy concerns that the Bronx court raised in People v. Miranda and discusses why certain aspects of the Freedom Fund’s model, some of which were disapproved by the court, could allow it to perform well in the Bronx, where Vera’s bail bond agency did not. This Note concludes that the court’s concern regarding the criteria employed by the Freedom Fund to select defendants is one that might be addressed effectively by a bail fund through careful structuring and a stricter client selection process. In order to win judicial support, a bail fund may need to set firmer criteria to guide its determination to post bail at no expense to its clients. This is perhaps especially so where the fund shares a connection to a particular defense organization—a relationship that might give rise to more judicial concern.”

People v. Miranda, 24 Misc.3d 1223(A) (Sup. Ct. Bronx County 2009)[36]
“The narrow legal question in these cases is whether the Court, pursuant to Criminal Procedure Law (“CPL”) § 510.40(3), should accept bail posted on defendant’s behalf by an unlicensed not-for-profit-corporation that was itself created and initially financed by a public defender organization for the purpose of posting bail for its own clients. This is apparently a case of first impression in many regards. The defendant’s bail, in the sum of $3,000 cash, was posted by an individual working for a corporation called The Bronx Freedom Fund, after a request made by the defendant’s attorney, who works on the staff of the Bronx Defenders. The Bronx Freedom Fund has been posting bail for clients of the Bronx Defenders for more than a year and a half, apparently without any regulatory oversight. The corporation does not post bail for every defendant referred by the lawyers; its sole salaried employee, Ms. Zoe Towns, makes a decision to post bail after conducting an independent evaluation of each client. The Bronx Freedom Fund has posted bail for more than 130 Bronx Defenders’ clients. Because the corporation has become a “bail bond business” as well as an “insurance business” as defined in Insurance Law § 6801, it had to be licensed. For the reasons stated herein, the bail posted in these cases is rejected on both legal and public policy grounds.”

Philly Activists Raising Money to Bail Poor Defendants Out of Jail, WHYY, Oct. 23, 2017
“All such funds are intended as temporary, stopgap measures until authorities can reform longstanding cash bail systems, where pre-trial inmates who can’t afford even low bail can get trapped for months, or even years, behind bars. That can cost them jobs, housing, and even custody of their children. And defendants who spend time in jail before trial also tend to have to have higher conviction rates, longer sentences, and an increased likelihood to reoffend, reformers say. Many report feeling pressured to accept guilty pleas just to get out of jail, they add.”

Pretrial Services and Bail Funds Increasing Access to Justice (NOFSW 2014)
“This workshop will – Present an overview of mass incarceration in the United States today – Review pretrial services and how it is being implemented in states throughout the country as a reform alternative to cash bail – Review how bail funds function and how they could be developed in your community. Specific examples of the Bronx Freedom Fund and the Massachusetts Bail Fund will be presented.

Suffolk County Charitable Bail Fund Program
“EOC [Economic Opportunity County] of Suffolk’s innovative Charitable Bail Fund Program helps low-income defendants accused of a misdemeanor and where bail is set at $2,000 or less and lack the funds to secure their own release. The revolving bail fund is modeled on the Bronx Freedom Fund, a pioneering program created in 2007 that has successfully helped hundreds avoid the devastating costs and disruption of short-term jail time while awaiting a hearing. Defendants can now maintain employment, attend school, stay in their homes, and enroll in appropriate support services while their cases are pending. This program fully aligns with EOC of Suffolk, Inc.’s mission to help keep families intact, and to promote self-sufficiency and economic justice.”

Washington Square Legal Services (NYU School of Law)
“The WSLS Bail Fund is a program run by Washington Square Legal Services, Inc. (WSLS), a New York not-for-profit 501(c)(3) corporation affiliated with NYU School of Law. WSLS is licensed as a charitable bail organization with the New York Department of Financial Services and is the first charitable bail organization serving defendants in Manhattan. WSLS posts bail on behalf of certain indigent criminal defendants who have been charged with misdemeanors and lack the funds to make bail. WSLS does not represent these defendants in a legal capacity. Instead, legal organizations that represent these defendants and are not affiliated with WSLS, such as the New York County Defender Services (NYCDS), a public defender office in Manhattan, refer them to WSLS.”

With Online Bail Payments, City Hall Aims to Curtail Unnecessary Jail Stays, N.Y.L.J., Nov. 2, 2016
“Friends and family of people incarcerated in New York City jails will have the option of posting bail online, part of a larger effort to reform the bail system and reduce reliance on cash bail, officials announced Tuesday. The program is set to begin in spring 2017.”

Medical and Mental Health

Assessing Inmate Cause of Death: Deaths in Custody Reporting Program and National Death Index (BJS 2016)
“Provides a technical review of the coverage and quality of inmate cause of death data collected under BJS’s Deaths in Custody Reporting Program (DCRP). Records of inmates who died in jail and prison from 2007 to 2010 were matched to the National Death Index (NDI). This report examines match rates, compares underlying cause of death, and assesses sources of disagreement between the DCRP and NDI.”

Assessment of Coverage in the Arrest-Related Deaths Program (BJS 2015)
“Provides an executive summary of the Arrest-Related Deaths (ARD) component of the Deaths in Custody Reporting Program (DCRP) technical assessment report. Data from the ARD represent a national accounting of persons who have died during the process of arrest, including homicides by law enforcement personnel and deaths attributed to suicide, intoxication, accidental injury, and natural causes. This executive summary includes a technical review of the ARD programs methodology and an assessment of the programs coverage of all arrest-related deaths in the United States. It also provides key findings from the comparison of the ARD program to Supplementary Homicide Reports (SHR) maintained by the FBI. The coverage assessment matched law enforcement homicides captured by the ARD program to those found in the SHR, followed by a capture-recapture analysis to provide information on the scope and characteristics of cases eligible for inclusion in the ARD program that are captured in one or both of these data systems. See also Arrest-Related Deaths Program Assessment: Technical Report and Arrest-Related Deaths Program: Data Quality Profile.” See Arrest-Related Deaths Series (BJS).

Callous and Cruel: Use of Force against Inmates with Mental Disabilities in U.S. Jails and Prisons (HRW 2015)
“There is no national data on the prevalence of staff use of force in the more than 5,000 jails and prisons in the United States. Experts consulted for this report say that the misuse of force against prisoners with mental health problems is widespread and may be increasing. Among the reasons they cite are deficient mental health treatment in corrections facilities, inadequate policies to protect prisoners from unnecessary force, insufficient staff training and supervision, a lack of accountability for the misuse of force, and poor leadership.”

Creating the Bad Mother: How the U.S. Approach to Pregnancy in Prisons Violates the Right to Be a Mother, 18 UCLA Women’s L.J. 1 (2010-2012)
“This article will set forth how U.S. state and federal law enforces and reifies the perception that people in prison are not suited to be mothers. First, this article will present relevant background information regarding the government’s involvement in restricting people’s mothering rights, especially with regard to people of color, as well as statistics on pregnant people in California’s women’s prisons. Second, this discussion is followed by an analysis of the legal obligations of the United States with regard to the rights of individuals, and of the failure of the United States to meet such obligations. Specifically, the article examines how the U.S. government does not protect the mothering rights of people in prison, and in some cases, reinforces discrimination against parents in prison. Third, the article discusses the abuses of the rights of pregnant and post-partum individuals in California’s women’s prisons, including abysmal prenatal care, poor physician-patient relationships, deficient responses to complications, and inadequate postpartum care. Fourth, the article examines how international human rights law provides a challenge to these abuses by supporting a person’s right to safe motherhood. We also set forth how the U.S. government has failed to uphold the human rights to family, information, health, bodily integrity, dignified treatment, life, and the right to be free from cruel, inhumane or degrading treatment. Finally, the article concludes with a call for all people, especially mothers, to work together to protect the rights of mothers by bringing the U.S. into compliance with international law by opposing stereotypical notions of who is a good or bad mother. This work must include providing real prison alternatives and reducing the number of people in prison.”

Indicators of Mental Health Problems Reported by Prisoners and Jail Inmates, 2011-2012 (BJS 2017)
“Presents prevalence estimates of mental health indicators among state and federal prisoners and jail inmates by different time periods, demographics, criminal justice history, most serious offense, mental health treatment received while incarcerated, and rule violations. Indicators were defined as serious psychological distress (SPD) in the 30 days prior to the interview or having a history of a mental health problem. Data are from BJS’s 2011-2012 National Inmate Survey. Comparisons to the general population are based on data from the Substance Abuse and Mental Health Services Administration’s National Survey on Drug Use and Health, conducted in 2009, 2010, 2011, and 2012.”

Medical Problems of State and Federal Prisoners and Jail Inmates, 2011–12 (BJS 2015)
“Presents the prevalence of medical problems among state and federal prisoners and jail inmates, highlighting differences in rates of chronic conditions and infectious diseases by demographic characteristic. The report describes health care services and treatment received by prisoners and jail inmates with health problems, including doctor’s visits, use of prescription medication, and other types of treatment. It also explains reasons why inmates with health problems were not receiving care and describes inmate satisfaction with health services received while incarcerated. Data were from the 2011–2012 National Inmate Survey.”

Medicine and Mass Incarceration: Education and Advocacy in the New York City Jail System, 19(9) AMA J. Ethics 913 (2017)
“The United States incarcerates more people than any other country in the world. The scale of mass incarceration ensures that almost all practicing physicians will treat formerly incarcerated patients. Yet the majority of physicians receive little training on this topic. In this paper, we will outline the need for expanded education on the interface between incarceration and health, describe initiatives taking place within the New York City jail system and nationally, and describe future directions for curriculum development. We conclude by highlighting the important role health care workers can play in transforming our criminal justice system and ending mass incarceration.”

Mental Health Problems of Prison and Jail Inmates (BJS 2006)
“Presents estimates of the prevalence of mental health problems among prison and jail inmates using self-reported data on recent history and symptoms of mental disorders. The report compares the characteristics of offenders with a mental health problem to those without, including current offense, criminal record, sentence length, time expected to be served, co-occurring substance dependence or abuse, family background, and facility conduct since current admission. It presents measures of mental health problems by gender, race, Hispanic origin, and age. The report describes mental health problems and mental health treatment among inmates since admission to jail or prison. Findings are based on the Survey of Inmates in State and Federal Correctional Facilities, 2004, and the Survey of Inmates in Local Jails, 2002.”

Mortality in Local Jails, 2000-2014 – Statistical Tables (BJS 2016)
“Describes national and state-level data on inmate deaths that occurred in local jails from 2000 to 2014 and includes a preliminary count of inmate deaths in local jails in 2015. Mortality data include the number of deaths and mortality rates by year, cause of death, selected decedent characteristics, and the state where the death occurred. Data are from BJS’s Deaths in Custody Reporting Program, which was initiated under the Death in Custody Reporting Act of 2000 (P.L. 106-297).” See generally Mortality in Local Jails and State Prisons (BJS).

Prison Inmate’s or Pretrial Detainee’s Eighth Amendment Rights, or Rights Related to Claims of “Deliberate Indifference,” with Respect to Pregnancy, 5 A.L.R.7th Art. 7 (2015)
“The U.S. Const. Amend. VIII prohibition on cruel and unusual punishment protects prisoners from the unnecessary and wanton infliction of pain. An objective component of an Eighth Amendment deliberate indifference claim is met upon showing that the detainee faced a substantial risk of serious harm and that such risk is one that society chooses not to tolerate. The courts in a number of cases have addressed a prison inmate’s or pretrial detainee’s Eighth Amendment rights, or rights related to claims of “deliberate indifference,” with respect to pregnancy. This article collects and discusses all of the cases which have addressed a prison inmate’s or pretrial detainee’s Eighth Amendment rights, or rights related to claims of “deliberate indifference,” with respect to pregnancy.”

Pregnant Opioid Users Need Treatment, Not Jail, Pediatricians Say, Yahoo News, Feb. 23, 2017
“Every 25 minutes, a drug-addicted baby is born in the U.S. To try to protect the youngest victims of the nation’s opioid epidemic, Tennessee enacted a law that sent new mothers to jail for substance abuse, while other states employ existing child-abuse laws to punish prenatal drug users and remove their children. But sanctions have backfired, serving only to drive pregnant women away from necessary prenatal care and substance-use treatment, pediatricians say in three new papers. In one, published this week in Pediatrics, the American Academy of Pediatrics exhorts policymakers to support a public health approach – rather than a criminal justice response – to opioid use in pregnancy.”

Reproductive Injustice: The State of Reproductive Health Care for Women in New York State Prisons (CANY 2015)
“Over the years, many women of color groups have worked to articulate and advance the framework of reproductive justice. One of those groups, Forward Together, developed a powerful definition of reproductive justice: “Reproductive Justice exists when all people have the social, political and economic power and resources to make healthy decisions about our gender, bodies, sexuality and families for ourselves and our communities.” We hope that this report helps to illuminate the fundamental conflict between reproductive justice and mass incarceration. We hope it contributes to the fight for a world where women are valued, healthy, safe and able to control their own bodies, where families and communities are afforded the resources and opportunities they need to thrive, and where the basic human dignity and rights of all people are respected and upheld.”

State v. Williams, No. A-4417-16T6, at 2 (N.J. Super. Ct. Sept. 29, 2017)
“Because we conclude that the trial judge abused his discretion in giving defendant’s pregnancy greater weight than all other pertinent factors in his determination to release her, we reverse. Pregnancy, like any other medical condition, is only considered for its impact on the risk of a defendant posing a danger to the community, obstructing justice or failing to appear in court. N.J.S.A. 2A:162-20.”

What Are Physicians’ Responsibilities to Patients Whose Health Conditions Can Influence Their Legal Proceedings?, 19(9) AMA J. Ethics 877 (2017)
“Correctional populations are disproportionately affected by conditions that affect cognition, such as psychiatric illness and head trauma. Honoring bioethical principles in the care of such patients can be particularly difficult in the correctional setting. However, the approach should not change markedly because a patient is incarcerated. That is, the same standards of respecting patient autonomy and confidentiality should be maintained, and the fact that correctional populations are already marginalized makes it all the more important for clinicians to honor these principles. Physicians should act in the best interest of their patients; in jails this might include disclosing information to and consulting with a patient’s legal defense. However, this step should only be taken with a patient’s consent or, in cases in which the patient does not have decision-making capacity, when it seems consistent with a patient’s wishes.”

Racial Bias

Bias in Criminal Risk Scores Is Mathematically Inevitable, Researchers Say, ProPublica, Dec. 30, 2016
“The racial bias that ProPublica found in a formula used by courts and parole boards to forecast future criminal behavior arises inevitably from the test’s design, according to new research. The findings were described in scholarly papers published or circulated over the past several months. Taken together, they represent the most far-reaching critique to date of the fairness of algorithms that seek to provide an objective measure of the likelihood a defendant will commit further crimes. Increasingly, criminal justice officials are using similar risk prediction equations to inform their decisions about bail, sentencing and early release. The researchers found that the formula, and others like it, have been written in a way that guarantees black defendants will be inaccurately identified as future criminals more often than their white counterparts.”

Criminalizing Race: Racial Disparities in Plea Bargaining, SSRN (2017)
“Most of the empirical research examining racial disparities in the criminal justice system has focused on its two endpoints – the arrest and initial charging of defendants and judges’ sentencing decisions. Few studies have assessed disparities in the steps leading up to a defendant’s conviction, where various actors make choices that often constraint judges’ ultimate sentencing discretion. This article addresses this gap by examining racial disparities in the plea-bargaining process, focusing on the period between the initial filing of charges and the defendant’s conviction.”

Joint Statement in Support of the Use of Pretrial Risk Assessment Instruments (NACDL 2017)
“While there are concerns that the use of pretrial risk assessment instruments fails to address existing racial bias in the criminal justice system, those concerns should not be used to deter the use of pretrial risk assessment, but should instead be used to guide protocols for implementation, data collection and analysis; to identify points in the system which may require amelioration; and to act as the basis for ongoing monitoring by advocates and community groups external to the system. Validated pretrial risk assessment instruments have been shown to increase rates of pretrial release, including people of color, while maintaining high rates of court appearance and public safety.” See also Joint Statement in Support of the Use of Pretrial Risk Assessment Instruments, NAPD Blog, May 10, 2017.

Pretrial Risk Assessment Helps Reduce Disparities (PJI 2017)
“The integrity and effectiveness of pretrial justice depends on the court’s ongoing commitment to recognizing and eliminating bias in its decision making. Pretrial justice systems based on money bail and subjective decision-making criteria produce unacceptable racially disparate results. Validated pretrial risk assessment tools, when thoughtfully designed and tested and objectively applied, can help jurisdictions reduce racial and economic bias in the decisions they make and the outcomes they produce.”

Pretrial Risk Assessment – Perpetuating or Disrupting Racial Bias?, Pretrial Justice Institute Blog, Dec. 6, 2016

“Several years ago I [Marie VanNostrand, Ph.D.] coined the term ‘resource-based vs. risk-based’ to describe the two primary systems of pretrial release in our country. One system relies on a defendant’s financial resources to determine if they are released or detained pretrial; the other relies on that defendant’s risk of failing to appear in court and the danger they pose to the community. Remarkably, the volume of evidence against a resource-based system has quietly accumulated for a century or longer. Yet, as the volume of evidence supporting a risk-based system has increased exponentially over the past five years, the concern over the potential for risk assessments to perpetuate racial bias has inexplicably begun to overshadow their benefits and to slow pretrial reform efforts. The concern that risk assessments can perpetuate the existing racial bias in our criminal justice system was raised to the national stage in 2014 by then Attorney General Eric Holder and, although I suspect unintentionally, has become a key argument against pretrial reform. The question being debated is whether risk assessments perpetuate racial bias in our criminal justice system or if they reduce (not eliminate) that bias and actually disrupt the cycle of injustice. The answer is—both. Inarguably a poorly constructed risk assessment which relies on risk factors that are not race neutral can perpetuate racial bias. But I would argue that a risk assessment developed using scientifically rigorous research methods with a focus on race neutrality can ensure a risk assessment is free of predictive bias as is artfully discussed by Skeem and Lowenkamp.”

Racial Bias in Bail Decisions, SSRN (2017)
“This paper develops a new test for identifying racial bias in the context of bail decisions – a high-stakes setting with large disparities between white and black defendants. We motivate our analysis using Becker’s (1957) model of racial bias, which predicts that rates of pre-trial misconduct will be identical for marginal white and marginal black defendants if bail judges are racially unbiased. In contrast, marginal white defendants will have a higher probability of misconduct than marginal black defendants if bail judges are racially biased against blacks. To test the model, we develop a new estimator that uses the release tendencies of quasi-randomly assigned bail judges to identify the relevant race-specific misconduct rates. Estimates from Miami and Philadelphia show that bail judges are racially biased against black defendants, with substantially more racial bias among both inexperienced and part-time judges. We also find that both black and white judges are biased against black defendants. We argue that these results are consistent with bail judges making racially biased prediction errors, rather than being racially prejudiced per se.”

Right to Counsel[37]

Illinois: General Order No. 2017-01 Appointment of the Public Defender or Designee for Persons in Police Custody (Cir. Ct. Cook County, IL Mar. 14, 2017)
“IT IS HEREBY ORDERED that, when an arrestee or other person not represented by counsel is held in police custody and requests court-appointed legal representation, and representation is available from the Law Office of the Cook County Public Defender or its designee (“Public Defender”), the Public Defender shall be deemed appointed by the court as defense counsel, pending appearance before the court.” See also Chief Judge Signs Order to Provide Free Lawyers for Arrestees in CPD Custody, Cir. Ct. Cook County Press Release, Mar. 14, 2017.

Maryland: DeWolfe v. Richmond, 434 Md. 444, 76 A.3d 1019, 1026, 1031 (Ct. App. Md. 2013)
“Because of the amendment to the Public Defender statute, this Court must decide whether an indigent criminal defendant has a constitutional right to state-furnished counsel at an initial appearance before a District Court Commissioner. We shall hold that, under the Due Process component of Article 24 of the Maryland Declaration of Rights, an indigent defendant has a right to state-furnished counsel at an initial appearance before a District Court Commissioner. We shall not decide whether an indigent defendant, at an initial appearance before a District Court Commissioner, has a right to state-furnished counsel under the Sixth or Fourteenth Amendments to the Federal Constitution or under Article 21 of the Maryland Declaration of Rights. . . .
At a defendant’s initial appearance before a District Court Commissioner pursuant to Maryland Rule 4-213, the defendant is in custody and, unless released on his or her personal recognizance or on bail, the defendant will remain incarcerated until a bail review hearing before a judge. Consequently, we hold that, under Article 24 of the Maryland Declaration of Rights, an indigent defendant is entitled to state-furnished counsel at an initial hearing before a District Court Commissioner.”

New York: Hurrell-Harring v. State of New York, 15 N.Y.3d 8, 20-21 (2010)
“It is clear that a criminal defendant, regardless of wherewithal, is entitled to “`the guiding hand of counsel at every step in the proceedings against him'” (Gideon v Wainwright, 372 US at 345, quoting Powell v Alabama, 287 US 45, 69 [1932]). The right attaches at arraignment (see Rothgery v Gillespie County, 554 US 191, 128 S Ct 2578 [2008]) and entails the presence of counsel at each subsequent “critical” stage of the proceedings (Montejo v Louisiana, 556 US ___, 129 S Ct 2079 [2009]). As is here relevant, arraignment itself must under the circumstances alleged be deemed a critical stage since, even if guilty pleas were not then elicited from the presently named plaintiffs,[2] a circumstance which would undoubtedly require the “critical stage” label (see Coleman v Alabama, 399 US 1, 9 [1970]), it is clear from the complaint that plaintiffs’ pretrial liberty interests were on that occasion regularly adjudicated (see also CPL 180.10 [6]) with most serious consequences, both direct and collateral, including the loss of employment and housing, and inability to support and care for particularly needy dependents. There is no question that “a bail hearing is a critical stage of the State’s criminal process” (Higazy v Templeton, 505 F3d 161, 172 [2d Cir 2007] [internal quotation marks and citation omitted]).

Recognizing the crucial importance of arraignment and the extent to which a defendant’s basic liberty and due process interests may then be affected, CPL 180.10 (3) expressly provides for the “right to the aid of counsel at the arraignment and at every subsequent stage of the action” and forbids a court from going forward with the proceeding without counsel for the defendant, unless the defendant has knowingly agreed to proceed in counsel’s absence (CPL 180.10 [5]).[3] Contrary to defendants’ suggestion and that of the dissent, nothing in the statute may be read to justify the conclusion that the presence of defense counsel at arraignment is ever dispensable, except at a defendant’s informed option, when matters affecting the defendant’s pretrial liberty or ability subsequently to defend against the charges are to be decided. Nor is there merit to defendants’ suggestion that the Sixth Amendment right to counsel is not yet fully implicated (see Rothgery, 554 US at 209).”

United States: Rothgery v. Gillespie County, Texas, 554 U.S. 191 (2008)
“Our holding is narrow. We do not decide whether the 6-month delay in appointment of counsel resulted in prejudice to Rothgery’s Sixth Amendment rights, and have no occasion to consider what standards should apply in deciding this. We merely reaffirm what we have held before and what an overwhelming majority of American jurisdictions understand in practice: a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel. Because the Fifth Circuit came to a different conclusion on this threshold issue, its judgment is vacated, and the case is remanded for further proceedings consistent with this opinion.”

United States: Turner v. Rogers, 564 U.S. 431 (2011)
“South Carolina’s Family Court enforces its child support orders by threatening with incarceration for civil contempt those who are (1) subject to a child support order, (2) able to comply with that order, but (3) fail to do so. We must decide whether the Fourteenth Amendment’s Due Process Clause requires the State to provide counsel (at a civil contempt hearing) to an indigent person potentially faced with such incarceration. We conclude that whereas here the custodial parent (entitled to receive the support) is unrepresented by counsel, the State need not provide counsel to the noncustodial parent (required to provide the support). But we attach an important caveat, namely, that the State must nonetheless have in place alternative procedures that assure a fundamentally fair determination of the critical incarceration-related question, whether the supporting parent is able to comply with the support order.”

Chicago Judge Orders Access to Free Lawyers at Police Stations, Huffington Post, Mar. 14, 2017
“In a city where fewer than 1 percent of people in police custody are visited by an attorney, a judge’s order will help the poor access a free lawyer while at the police station. Chief Judge Timothy Evans of the Circuit Court of Cook County signed an order Tuesday that would make a county public defender or a designated private attorney available to anyone who is in custody at one of the Chicago Police Department’s 22 stations with lockup facilities.”

Constitutional Right to Counsel at Bail Hearings, ABA Crim. Just., Spr. 2016, at 23
“Unanswered by the United States Supreme Court is whether the Sixth Amendment to the United States Constitution mandates a right to an appointed lawyer at bail hearings. When the Supreme Court upheld the federal Bail Reform Act of 1984, part of the basis was that the statute provided a right to counsel. (United States v. Salerno, 481 U.S. 739, 751 (1987).) Since Salerno (and a later case interpreting the Bail Reform Act), there have been no Supreme Court cases addressing the right to bail or the procedures accompanying that right. The closest, and the one that may ultimately lead to a constitutionally recognized right to counsel at bail hearings, is Rothgery v. Gillespie County, Texas. (554 U.S. 191 (2008).)”

Counsel at First Appearance (NYS Office of Indigent Legal Services)
“In November 2013, the Office of Indigent Legal Services (ILS) embarked upon improving the quality of constitutionally legal representation constitutionally guaranteed to all indigent persons by making funds available and soliciting proposals from counties to develop new, innovative programs and processes designed to measurably improve the delivery of indigent defense services afforded at a defendant’s first appearance before a judge or judicial officer. In response to an RFP to make demonstrable and measurable improvements to the delivery of indigent legal services, ILS awarded demonstration grants to support 25 upstate New York counties in their effort to provide effective representation of counsel at arraignment and to promote continuous representation of such persons throughout their criminal proceedings. Grants were also awarded to those counties able to produce a replicable model or practice that is usable and adaptable by other localities or counties throughout the State. Funding was also provided to support those efforts in establishing a replicable model or practice that could be adaptable in similar localities and/or counties throughout the State. A list of grantee counties is available for review.”

Courts Sidestep the Law, and South Carolina’s Poor Go to Jail, N.Y. Times, Oct. 12, 2017
“Being represented by a lawyer is a fundamental right, enshrined in the Sixth Amendment and affirmed by the Supreme Court, which has ruled that anyone facing imprisonment, even for a minor offense, is entitled to legal counsel. But the promise has been a fragile one, with repeated complaints that people without means are stuck with lawyers who are incompetent, underfunded or grossly overworked. In municipal courts that handle low-level crimes, poor defendants can face a worse problem: no lawyer at all. Recent reports detail a failure to provide lawyers in Nashville and Miami-Dade courtrooms, and in 2015, Charles E. Grassley of Iowa, the Republican chairman of the Senate Judiciary Committee, held hearings on the issue, saying the right to a lawyer was frequently ignored in misdemeanor cases.”

Do Attorneys Really Matter: The Empirical and Legal Case for the Right of Counsel at Bail, 23 Cardozo L. Rev. 1719 (2001-2002)
“Contrary to common belief, our legal system does not guarantee a lawyer to every person whose freedom is at stake. Instead, the indigent accused usually stands alone, without counsel to protect his liberty when first appearing at a bail hearing. Most states do not consider the right to counsel to apply until a later stage of a criminal proceeding – days, weeks or months after the pretrial release determination. During this time, many unrepresented detainees accused of nonviolent crimes languish in jail. Would legal representation at the bail stage make a difference? Is there an objective yardstick that would measure the value of counsel at this stage? Can the constitutional right to counsel be evaluated to demonstrate its value to the criminal justice system?

A social science study recently completed in Baltimore, Maryland answered these questions. The project was unique, in that it was designed not only to provide counsel to suspects at an important decision point in the criminal justice process, but also to provide a rigorous empirical examination of the effect of such representation. The study presented convincing empirical data that the benefits of representation are measurable and that representation is crucial to the outcome of a pretrial release hearing. Moreover, the study revealed that early representation enhances defendants’ respect for the system’s overall fairness and confidence in assigned counsel.”

Do Prosecutors Really Matter?: A Proposal to Ban One-Sided Bail Hearings, 44 Hofstra L Rev. 1161 (2016)
“In about half of all local jurisdictions today, arrested individuals face a judge at a bail hearing without the assistance of counsel, and in many of those jurisdictions, prosecutors may appear on behalf of the state. This article questions whether prosecutors can function as “ministers of justice” within the context of a one-sided proceeding where defendants appear without counsel. The ABA Standards for Criminal Justice: Prosecution and Defense Function apparently took the position of preferring the presence of prosecutors in all cases, even those in which a party appears without counsel. The rules assign prosecutors in those cases to protect the rights of the unrepresented accused, effectively casting the prosecutor as a surrogate defense attorney. The article demonstrates the various ways in which prosecutors are charged with protecting arrestees and concludes that time has proven this approach to be unworkable and ineffective in protecting the rights of defendants at bail hearings. In fact, the article argues that defendants would likely be better off if prosecutors were ethically barred from participating in bail hearings unless defense counsel is also provided.”

Don’t I Need a Lawyer? Pretrial Justice and the Right to Counsel at First Judicial Bail Hearing (Nat’l Const. Proj. 2015)
“This report begins with a discussion on the current state of the law concerning access to counsel for criminal defendants, reminding us that because the law presumes everyone innocent unless proven guilty, the law favors pretrial release. It describes the far-reaching and well-documented adverse effects of denying counsel at the earliest stages of a criminal prosecution, a situation that presents numerous constitutional concerns. Without a lawyer at these preliminary stages to marshal resources and advocate on the accused’s behalf, judges are more likely to order a financial condition on release before trial, which results in low income and poor defendants – who are disproportionately people of color – remaining incarcerated, and for longer periods of time. In addition, without the advice of a lawyer, an unrepresented defendant who is unaware of and untrained in the law may speak or remain silent at a bail hearing to his or her later detriment. Defendants incarcerated from the point of arrest also experience substantial prejudice in their ability to conduct an immediate investigation, prepare for trial and build a defense. Collateral consequences also flow from unnecessary pretrial incarceration: the accused may lose a job, his or her home, and the ability to support loved ones. A lawyer’s effective advocacy is a vital safeguard against bail-setting practices that often are excessive for economically disadvantaged people.”

Harris County to Add Public Defenders to Bail Hearings, Houston Chronicle, May 23, 2017
“Harris County Commissioners voted Tuesday to add eight new positions to the county’s public defender office to help prevent the routine pre-trial jailing of poor people accused of crimes. The new hires will help the public defenders office be present at nearly all pre-trial bail hearings starting July 1st, ensuring that those accused of crimes understand their rights and helping hearing officers, who set bail, understand whether the accused pose a risk to the public or can be released ahead of trial. The initiative, the first of its kind in the state, comes as the bail system itself is the target of intense scrutiny. A federal civil rights lawsuit is targeting the cash bail system as unconstitutional because those accused of low-level crimes and without means are jailed while those who can pay get out.”

Maryland Access to Justice Story: Indigent Defendants’ Right to Counsel at First Appearance, 15 U. Md. L.J. Race Relig. Gender & Class 1 (2015)
“In this Article, Professor Doug Colbert describes the sixteen-year law reform effort in which Maryland Law School’s Access to Justice clinical students, pro bono lawyers, and proponents of change succeeded in establishing indigent defendants’ right to counsel at initial appearance and other pretrial bail reforms.”

Pretrial Right to Counsel (NCSL 2016)
“In the first chart below you will find the exact language of each state constitutional provision establishing the right to counsel. In the second chart you will find statutory guidance on implementing the right to counsel in each state. State law summarized in the second chart provides guidance on what happens at a defendant’s initial appearance. Frequently these laws require a court to determine pretrial release and conditions of release, to advise defendants of their right to counsel and their right to appointed counsel if they are unable to afford an attorney, and to appoint counsel if they find that a defendant is indigent and is charged with an offense that requires representation. The National Center for State Courts has compiled additional information on how courts have interpreted these legal provisions in a Justice Brief titled Access to Counsel at Pretrial Release Proceedings.”

Right to Counsel at Initial Appearance Before a Judicial Officer at Which Liberty Is at Stake or at Which a Plea of Guilty to Any Criminal Charge May Be Entered (NACDL Board Resolution Feb. 19, 2012)
“The National Association of Criminal Defense Lawyers (NACDL) is the largest organization in the United States advancing the mission of the nation’s criminal defense lawyers to ensure justice and due process for persons accused of crimes. NACDL supports the right of all persons accused of crime to be represented by effective assistance of counsel at every stage of a criminal prosecution, including the defendant’s first appearance when a judicial officer informs the accused of the charges and orders pretrial release or bail. Representation at the bail and pretrial release determination promotes a successful attorney-client relationship by permitting counsel to participate in judicial consideration at the moment a person’s liberty is decided. As the Supreme Court has said: “Navigating the . . . process without a lawyer’s assistance is a perilous endeavor for a lay person, and well beyond the competence of individuals . . . who have little education, learning disabilities and mental impairments.” Absent counsel, unrepresented defendants are more likely to face an unaffordable bail and extended pretrial detention, onerous conditions of pretrial release, and added difficulties in preparing a defense. In addition, in many jurisdictions unrepresented accused persons are permitted or encouraged to enter guilty pleas at an initial appearance, notwithstanding that a guilty plea to even a minor charge can trigger significant negative consequences of which the accused may not be aware.”

When Does the Right to an Attorney Kick In?, The Atlantic, Sept. 15, 2017
“The Sixth Amendment guarantees the right to legal representation in criminal cases, but doesn’t detail how the courts should apply it. A series of Supreme Court decisions over the past half-century have shaped how it plays out on the ground: The landmark Gideon v. Wainwright decision in 1963 guaranteed the right for all defendants accused of “serious crimes,” and Argersinger v. Hamlin did the same with misdemeanor and petty charges in 1972. “[N]o person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial,” Justice William Douglas wrote for the Court in Argersinger. In other words, defendants who could face jail time must have a lawyer. Left undefined is when exactly the right kicks in before trial. Also in the 1970s, the Supreme Court established that some “pretrial procedures” require counsel, but arraignments weren’t specified. To this day, they’ve remained a legal gray zone. “That’s how we get to this sticking point,” said Zoë Root, senior policy counsel at American University’s Justice Programs Office. “States get to determine it themselves.””

When the Cheering (for Gideon) Stops: The Defense Bar and Representation at Initial Bail Hearings, Champion, June 2012, at 10
“Throughout most of the country, assigned defenders are not present at the first bail hearing, leaving the accused indigent defendant without an attorney when liberty is at stake and a lawyer’s advocacy could make the biggest difference in determining whether a judicial officer continues incarceration. Absent counsel, an accused is likely to receive an excessive or unreasonable bail. Those who cannot afford bail, including many charged with nonviolent crimes, will remain in jail between two and 70 days, waiting for their assigned lawyer’s advocacy before a judicial officer. Taxpayers are left to pay the high cost of incarceration before trial. This article suggests that the absence of representation at the beginning of a State criminal prosecution must come to a screeching halt. The criminal defense bar should take a leadership role and dedicate Gideon’s anniversary to making certain that an accused’s right to the effective assistance of counsel begins at the initial bail hearing. Indeed, guaranteeing vigorous representation should be the defense bar’s number one priority.”

Risk Assessment

Bail Reform and Restraint for Dangerousness: Are Defendants a Special Case?, SSRN (2017)
“Bail reform is gaining momentum nationwide. Reformers aspire to untether pretrial detention from wealth (the ability to post money bail) and condition it instead on statistical risk, particularly the risk that a defendant will commit crime if he remains at liberty pending trial. The bail reform movement holds tremendous promise, but also forces the criminal justice system to confront a difficult question: What statistical risk that a person will commit future crime justifies short-term detention? What about lesser restraints, like GPS monitoring? Although the turn to actuarial risk assessment in the pretrial context has engendered both excitement and concern, the debate so far has largely ignored this foundational question. One way of thinking about the question of what level of crime-risk justifies restraint is to ask whether the answer is different for defendants than for anyone else. It is generally assumed that the answer is yes—that defendants are a special case, exempt by virtue of their pending charge from otherwise applicable constitutional and normative constraints. This Article challenges that assumption. It argues that, for purposes of restraint for dangerousness, there is no clear constitutional, moral, or practical distinction between a defendant and a non-defendant who are equally dangerous. There is thus no basis to conclude that the risk standard for such restraint should be different for defendants than for anyone else.”

Bail Reform in California (UCLA 2017)
“We conducted this analysis in two stages. First, we compared the screening process used in commercial surety bail to the screening process used with non-bail release. Under the commercial surety bail system, judges use bail schedules to screen defendants and assign bail amounts. Under non-bail release, judges use risk assessment tools to screen defendants and inform their release decisions. We analyzed how the bail schedule compares to risk assessment tools on two criteria: predictive accuracy and race neutrality. We found that risk assessment tools scored higher on both criteria. Based on this analysis, we recommend the adoption of a risk assessment tool to inform judicial decision-making. The second stage of our analysis compares the commercial surety bail release method to non-bail release methods based on five criteria: effectiveness, economic bias, fiscal impact, social cost, and political feasibility. We employed a variety of methods in our analysis. We operationalized predictive accuracy, race neutrality, economic bias, and effectiveness by undertaking an intensive literature review. We used high-level cost calculations and estimations to analyze fiscal impact and social cost. Finally, we conducted interviews to operationalize political feasibility. We found that non-bail release methods scored higher than commercial surety bail on four out of the five criteria (all except for political feasibility). Therefore, based on this analysis, we recommend that non-bail release replaces the commercial surety bail system. Risk assessment tools received higher scores than bail schedules in the first stage of analysis for both predictive accuracy and race neutrality. Non-bail release scored higher than bail release in the second stage of analysis for economic bias, effectiveness, fiscal impact, and social cost; it scored lower on political feasibility. Therefore, we recommend that the use of risk assessment tools paired with non-bail release replace the commercial surety bail system in California.”

Bail Reform: Why Judges Should Reject ‘Risk Assessment’, Crime Report, Aug. 25, 2017
“If you aren’t following bail reform, you may not be aware that accompanying the attempt to eliminate bail across the country is the touting of “risk assessment tools” to determine who should be detained on bail before trial. . . . However, the use of this tool has led to the wholesale release of violent criminals—and tragedy.”

Can Philly’s New Technology Predict Recidivism Without Being Racist?, Billy Penn, Sept. 25, 2017
“The current process of assigning bail is far from scientific. As part of sweeping changes to Philadelphia’s criminal justice system that are afoot, city officials are working with top data scientists to develop a computerized risk assessment tool that looks at a variety of factors and assigns a defendant a label: Low-, medium- or high-risk. Bail will be assigned from there, and the ultimate goal is to get more pretrial defendants out of the city’s jails while working to eventually end cash bail entirely. Criminal justice reform advocates see the end goal as a good one. But there’s a real concern that computerized risk assessment tools could predict recidivism by weighing factors that serve as a proxy for race and socioeconomic status, ultimately incarcerating more black and brown defendants while allowing white defendants to go free.”

Cash Bail Derails Pretrial Justice and Should Be Replaced with Risk Assessment, Huffington Post, Nov. 17, 2015
“Objective, data-based risk assessment helps courts decide whether a defendant can be safely managed in the community while his or her case moves through the system or if a person is too dangerous to be released pretrial. Risk assessment considers not only the individual’s current charge but also a variety of factors — such as criminal history, employment history, and family ties — that rigorous, scientific research has shown to reliably predict pretrial success.”

Detention Procedure Assessment Tool (DPAT) (ABA ROLI)
“Drawing on the ABA Rule of Law Initiative’s (ABA ROLI’s) 20 years of experience providing technical legal assistance to promote the rule of law in more than 70 countries worldwide, and in the framework of ABA ROLI’s seven other legal assessment tools, ABA ROLI has developed the Detention Procedure Assessment Tool (DPAT) to evaluate the use of detention in criminal cases at both the pretrial and sentencing stages. The pilot DPAT was conducted in Armenia in February 2010. The DPAT assesses the procedures, legal framework and practices relating to deprivation of liberty at all stages of criminal proceedings, from the moment an individual is deprived of liberty until the time that individual is returned to full liberty, including an assessment of the framework and practice for imposing non-custodial measures at both the pretrial and post-conviction stages. The DPAT examines both the de jure legislative and procedural framework for detention, and the de facto practices under which detention is imposed. The DPAT assessment draws on international and regional laws, norms and best practices concerning pretrial detention and sentencing, evaluating a country’s detention regime vis-à-vis 27 factors reflecting distinct critical issues and stages of the detention process.”

Digital Data: What Impacts a Bail Decision?, Sentinel, Aug. 30, 2017
Series about administration of bail setting practices in Cumberland County, Pennsylvania using risk assessment and data analysis.

(Evidence-Based, Actuarial Pretrial) Risk Assessment, Pretrial Justice Institute, Aug. 9, 2017
“A lot of folks are talking about “risk assessment” these days. And that’s good. But it’s important that everyone is clear about what it means (and doesn’t mean) when we use this term. At PJI, risk assessment is almost always accompanied by a handful of other words: pretrial, evidence-based, and actuarial.”

Expert Details Houston Jail’s New Risk-Assessment Tool, Courthouse News, Mar. 21, 2017
“The expert behind a data tool touted as a cure for overcrowding in Texas’ biggest jail explained in federal court Tuesday how the system will make bond recommendations within 30 minutes of an arrest. A federal class action filed last year accuses Harris County of violating poor misdemeanor defendants’ constitutional right against excessive bail. With more than 4.5 million residents, Harris County is the third most populous in the United States behind Los Angeles and Cook County, home to Chicago. Attorneys for lead plaintiff Maranda O’Donnell say the system makes no sense because a person arrested and charged with a petty crime could languish in jail and possibly lose their job, but a wealthy defendant accused of murder can bond out.”

Human Rights Watch Advises Against Using Profile-Based Risk Assessment in Bail Reform, HRW, July 17, 2017
“Human Rights Watch writes in response to the bail reform recommendations spelled out in “8 Basic Principles for Money Bail Reform” (8 Principles). With the exception of Principle 4, we agree with each, and find them consistent with recommendations in our recent report, “‘Not in it for Justice’ How California’s Pretrial Detention and Bail System Unfairly Punishes Poor People.” Other than Principle 4, the 8 Principles conform to international human rights standards. For example, Principle 7, which calls for decriminalization of “low level offenses,” echoes Human Rights Watch’s research and advocacy against criminal sanctions for crimes related to poverty, drugs, and mental illness. We have presented the human rights basis for opposing such forms of criminalization in past reports, including Nation Behind Bars, Every 25 Seconds: The Human Toll of Criminalizing Drug Use in the United States, and Callous and Cruel.

We recommend that Principle 4 be amended to urge jurisdictions to limit pretrial detention without the use of profile-based risk assessment tools. (We do not believe there should be any role for these tools in our pretrial justice system.) In fact, Principle 4 acknowledges problems with the use of these tools and primarily consists of admonishments for limiting and mitigating the harm that may come from their use. While we agree with the warnings implicit in Principle 4, we remain concerned that the recommendations offer no realistic constraints upon the harms described. For example, saying “such tools must be calibrated to take into account that people of color are disproportionately arrested, prosecuted and convicted,” is a laudable goal, but unlikely to actually occur. As Principle 4 states, “By their very nature, given current and past practice in policing, risk assessment instruments are prone to exacerbate racial disparities.””

In the US, Some Criminal Court Judges Now Use Algorithms to Guide Decisions on Bail, Quartz, Feb. 28, 2017
“As part of a bold effort at bail reform, the state of New Jersey replaced bail hearings with algorithmically informed risk assessments this year. Anyone’s eligible for release, no money down, if they meet certain criteria. To ensure unbiased, scientific decisions, judges use a machine-generated score. The automated recommendation serves as a guide and doesn’t replace judicial discretion. Still, the program raises questions about the claimed neutrality of machine reasoning, and the wisdom of reliance on mechanical judgment. While innocent until proven guilty is the mantra of US criminal law, defendants frequently stay in jail awaiting trial when judges decide they’re a flight risk or a threat, or they just can’t afford bail. It’s a process rife with human biases.”

Judges Replacing Conjecture with Formula for Bail, N.Y. Times, June 26, 2015, at A18
“After two years of testing, the formula, developed at a cost of $1.2 million by the Laura and John Arnold Foundation, is being rolled out to 21 more jurisdictions, including states like Arizona and New Jersey and cities like Chicago and Pittsburgh, the foundation announced on Friday. The algorithm gives defendants two scores — one for their likelihood of committing a crime and one for their risk of failing to appear in court — and flags those with an elevated risk of violence. In most of the country, there is little science behind the bail decisions made thousands of times a day by magistrates, commissioners and judges. In some places, bail is based on the charges alone; in others, court officials may weigh a host of factors like criminal record, employment status and substance-abuse history. Hidden biases against the poor and minorities can easily creep into the decision-making. And a growing body of evidence indicates that the nation’s bail system keeps many low-risk defendants incarcerated before trial, while those who may pose a higher risk are released because they have the money to make bail. Many law enforcement groups and defense lawyers have supported the use of scientifically validated risk assessments, but fewer than 10 percent of jurisdictions use them, partly because of cost. The Arnold Foundation eventually plans to make the tool, called the Public Safety Assessment, available to any jurisdiction.”

More Than 20 Cities and States Adopt Risk Assessment Tool to Help Judges Decide Which Defendants to Detain Prior to Trial, LJAF Press Release, June 26, 2015
“Laura and John Arnold Foundation (LJAF) today announced a widespread rollout of one of the most significant criminal justice reform initiatives currently underway in the United States. Twenty-one jurisdictions—from major cities to entire states—will adopt the Public Safety Assessment (PSA), a risk assessment tool that helps judges make accurate, efficient, and evidence-based decisions about which defendants should be detained prior to trial and which can be safely released. Early indications have shown that the tool helps judges increase public safety while reducing jail populations. Once the rollout is complete, the PSA will have been implemented in 29 jurisdictions, including three entire states—Arizona, Kentucky, and New Jersey—as well as three of the largest cities in the country—Charlotte, Chicago, and Phoenix.”

Myths & Facts – Using Risk and Need Assessments to Enhance Outcomes and Reduce Disparities in the Criminal Justice System (NCIC 2017)
“This “Myths & Facts” package includes a one-page list of myths and facts along with a research-based supporting document to help dispel three specific myths regarding the use of risk and need assessments within the criminal justice system. A description and relevant research to dispel each myth is provided. Our network believes that risk and need assessments currently provide the most accurate, objective prediction of the risk to recidivate. While risk and need assessments do not predict with perfect accuracy, they guide practitioners in the field towards the most accurate and equitable decisions available for safely managing justice-involved individuals.”

New Jersey Banking on Shift from Bail Money to Risk Assessment, NPR, Dec. 27, 2016

“More than half of the people being held in U.S. jails have not been convicted of a crime. In 2013, a study found that three-quarters of people in New Jersey county jails were waiting for their day in court. Forty percent could have walked out of jail, except they couldn’t afford to make bail. Starting next month, New Jersey hopes to drastically reduce its reliance on bail money. . . . Here’s how the experiment will work. Starting next month, judges in New Jersey will use what’s called a risk-assessment tool to help decide if a defendant is likely to flee or commit another crime. For high-risk defendants, judges can order them held without bail, like the federal system. On the other hand, judges are encouraged to release the majority of low-risk defendants without bail.”

New Risk Assessment Tool Will Let Computer Judge Inmates, KHQQ6, Feb. 9, 2017
“So, how can judges know that tomorrow’s crime won’t be committed today? Spokane County Regional Criminal Justice Administrator, Jacqueline van Wormer, might have the answer. “Who are the most high risk and needs to be detained to keep the community safe, versus those who can be safely released into the community and supervised by pretrial services?” said Wormer. Wormer helped implement a new tool called SAFER was paid for as part of a $1.75 million MacArthur Foundation grant, and it lets the computer be the judge. The algorithm uses regional data to calculate several factors a judge can use during pre-trial hearings.”

One State’s Bail Reform Exposes the Promise and Pitfalls of Tech-Driven Justice, Wired, Sept. 5, 2017
“Standing shoulder-to-shoulder with his client, Lugo’s lawyer, Gregory Aprile, argued for pretrial release, imploring Gallucio to consider one crucial factor: A new algorithmic tool that purports to predict a defendant’s likelihood to reoffend, or to fail to appear in court, ranked Lugo as fairly low-risk. On an escalating scale of 1 to 6, it rated Lugo a 2 for failure to reappear and a 3 for likelihood of reoffending. “They aren’t arbitrary numbers,” Lugo’s attorney said of the so-called Public Safety Assessment, or PSA. “It was the result of millions of statistics from around the country.” This may seem like an unusually technocratic approach to public defense. But it’s not so unusual anymore, at least not in New Jersey, where the state has recently undergone a holistic technological transformation of its arcane court system, all in the service of eliminating the use of bail statewide.”

Proclamation in Support of Objective Pretrial Release Assessments (Kentucky DPA 2017)
“The Kentucky Department of Public Advocacy (DPA), the statewide public defender program whose mission in Kentucky is to competently, diligently and effectively represent the indigent accused in all cases in which jail is a potential penalty, disputes such claims and objections based upon the experience it has had with the risk assessment tool in the thousands of cases in which its clients have been affected. DPA believes such claims are unfounded and refuted by the comprehensive, reliable data that has been collected.”

Public Safety Assessment (LJAF)
“The PSA [Public Safety Assessment] was created using a database of over 1.5 million cases drawn from more than 300 U.S. jurisdictions. We analyzed the data to identify the factors that are the best predictors of whether a defendant will commit a new crime, commit a new violent crime, or fail to return to court. These factors include whether the current offense is violent; whether the person has a pending charge at the time of arrest; whether the person has a prior misdemeanor conviction; whether the person has a prior felony conviction; whether the person has a prior conviction for a violent crime; the person’s age at the time of arrest; whether the person failed to appear at a pretrial hearing in the last two years; whether the person failed to appear at a pretrial hearing more than two years ago; and whether the person has previously been sentenced to incarceration. The PSA does not consider factors that could be discriminatory such as race, gender, level of education, socioeconomic status, and neighborhood. The PSA is more objective, far less expensive, and requires fewer resources to administer than previous techniques. And because it was developed and validated using data from diverse jurisdictions from across the country, it can be used anywhere in the United States. It is currently being used in 29 jurisdictions, including three entire states—Arizona, Kentucky, and New Jersey—as well as three of the largest cities and two of the largest jail systems.”

Public Safety Assessment: Risk Factors and Formula (LJAF 2016)
“The pretrial phase of the criminal justice process should aim to protect public safety and assure defendants’ appearance in court, while honoring individuals’ constitutional rights, including the presumption of innocence and the right to bail that is not excessive. Yet research shows that low-risk, nonviolent defendants who can’t afford to pay often spend extended time behind bars, while high-risk individuals are frequently released from jail. This system causes significant harm to too many individuals and is a threat to our communities.”

Questions About Pretrial Assessment (PJI 2017)
“Pretrial systems that employ evidence-based pretrial assessment tools are safer, fairer, and more effective than those that rely on money bail or even those that use subjective, consensus-based tools. Questions About Pretrial Assessment answers common questions about these assessments, such as how they are developed and how they are meant to be used. Also, since all assessment tools are not created equal, it includes a brief discussion of the kinds of tools the Pretrial Justice Institute believes improve pretrial outcomes.”

Risk Assessment (Center for Court Innovation)

“The Center for Court Innovation seeks to help criminal justice officials make more informed decisions at all stages of the process—from bail to sentencing to reentry. The risk-need-responsivity model is a framework for developing treatment plans based on individuals’ histories and needs. Risk refers to an individual’s chance of re-offending. Need refers to underlying problems such as addiction or joblessness that research has documented to impact the chances of re-offending. By using an evidence-based assessment to identify both risks and needs, criminal justice agencies can craft individualized treatment plans that target the problems that lead to criminal behavior. The Center for Court Innovation attempts to promote the risk-need-responsivity model and evidence-based interventions through its operating programs and through its technical assistance work with reformers around the world. The Center is currently developing a short risk-need assessment instrument for busy urban criminal courts.”

Spokane Judges Have a New Tool to Decide Whether the Right People Are in Jail, Spokesman-Review, Jan. 12, 2017
“The tool, called the Spokane Assessment for Evaluation of Risk, or SAFER, weighs factors including a defendant’s age, criminal history and the charge they’re facing to calculate how likely they are to skip out on their court date or commit another crime before trial. Members of the Spokane Regional Law and Justice Council, who are working on criminal justice reforms as part of the MacArthur grant, said the tool will do a better job of making sure people in jail are there because they pose a risk to community safety.”

Why the Money Bail System Needs to End, Crime Report, Oct. 17, 2016
“Pretrial risk assessment is a straightforward and commonsense alternative to money bail. Pretrial risk assessment tools consider a number of factors that have been shown to be accurate predictors of pretrial failure—a history of missed court dates, for example, or whether the current charge is for a violent offense. They then weigh these factors to help courts make informed decisions about who should be admitted to jail. It is a far superior process than relying only on fixed bail schedules or individual judge’s intuition, experience—and in some cases, bias.”

  1. SECONDARY SOURCES

Scholarly and Practice Articles

Bail Reform: New Directions for Pretrial Detention and Release, SSRN (2017)
“Our current pretrial system imposes high costs on both the people who are detained pretrial and the taxpayers who foot the bill. These costs have prompted a surge of bail reform around the country. Reformers seek to reduce pretrial detention rates, as well as racial and socioeconomic disparities in the pretrial system, while simultaneously improving appearance rates and reducing pretrial crime. The current state of pretrial practice suggests that there is ample room for improvement. Bail hearings are often cursory, with no defense counsel present. Money-bail practices lead to high rates of detention even among misdemeanor defendants and those who pose no serious risk of crime or flight. Infrequent evaluation means that the judges and magistrates who set bail have little information about how their bail-setting practices affect detention, appearance and crime rates. Practical and low-cost interventions, such as court reminder systems, are underutilized. To promote lasting reform, this chapter identifies pretrial strategies that are both within the state’s authority and supported by empirical research. These interventions should be designed with input from stakeholders, and carefully evaluated to ensure that the desired improvements are achieved.”

Beyond the Visiting Room: A Defense Counsel Challenge to Conditions in Pretrial Confinement, 14 Cardozo Pub. L. Pol’y & Ethics J. 1 (2015)
“The article explores the effects of solitary confinement, one of the most extreme forms of mistreatment in U.S. jails, its effect on people awaiting trial, and how abuse in jail impacts the ability of those detained to consult with counsel in defense of their criminal charges. The trauma of isolation is associated with impaired cognitive abilities and problems communicating and reasoning through legal options with an attorney. ‘By continuing to allow traumatizing conditions to persist in jails, the state interferes with people’s ability to access assistance of counsel.'”

Causal Impact of Bail on Case Outcomes for Indigent Defendants, arXiv:1707.04666v1 [stat.AP] (Cornell U. Libr.) (2017)
“We find a strong causal relationship between setting bail and the outcome of a case for the clients of our partner public defenders–specifically, we find that for cases for which different judges could come to different decisions regarding whether bail should be set, setting bail results in a 34% increase in the chances that they will be found guilty. Though we approach the problem using a different tradition for analyzing observational data than other similar studies, our substantive findings support the conclusions of the recent literature in this area. That our estimate is significantly higher than reported in other recent work is consistent with our hypothesis that the effect of setting bail is likely stronger among vulnerable populations, such as those who rely on public defenders. It is also likely that our estimate deviates from other, recently reported estimates because of how we define the population to which the estimates pertain. For example, one of the recent cited studies considered only felonies. And, though it is not explicitly mentioned, it seems that several studies include cases that were disposed at arraignment, whereas we define our population to be cases that have made it past that stage. Regardless, combined with the other recent studies on the causal impact of setting bail, our study adds to the mounting empirical evidence that bail causes worse case outcomes. The real world implications of this are that there are likely many people–disproportionately, poor people– who have been convicted of crimes simply because bail was set.”

Charging the Poor: Criminal Justice Debt and Modern-Day Debtors’ Prisons, 75 Md. L. Rev. 486 (2016)
“Debtors’ prisons should no longer exist. While imprisonment for debt was common in colonial times in the United States, subsequent constitutional provisions, legislation, and court rulings all called for the abolition of incarcerating individuals to collect debt. Despite these prohibitions, individuals who are unable to pay debts are now regularly incarcerated, and the vast majority of them are indigent. In 2015, at least ten lawsuits were filed against municipalities for incarcerating individuals in modern-day debtors’ prisons. . . . To remedy these concerns, my Article proposes eliminating egregious sanctions, providing courts flexibility to base fines on earning levels, and establishing procedures to enforce restrictions against incarcerating those who are truly unable to pay their criminal justice debt.”

Competency, Ethics, and Morality, 49 Tex. Tech L. Rev. 861 (2017)
“This Article examines legal, ethical, and moral issues relating to the delays faced by pretrial detainees in Texas who have been declared incompetent to stand trial and ordered to receive competency restoration services, but for whom there are long waits for available treatment space at state hospitals or in other public facilities. There is pending litigation against the State of Texas involving this issue. The Article first describes the nature and extent of the challenges facing these pretrial detainees in Texas. It then addresses existing federal and Texas precedent pertaining to the legal issues that are at stake. And, finally, it provides several recommendations and discusses potential alternatives. The Article is based on a presentation delivered at the 2016 Mental Health Law Symposium sponsored by the Texas Tech Law Review and Texas Tech Administrative Law Journal on November 18, 2016.”

Costs of Pretrial Detention, 97 B.U.L. Rev. 1 (2017)
“Spending on U.S. incarceration has increased dramatically over the last several decades. Much of this cost is on incarcerating pretrial detainees — inmates not convicted of a crime — which constitute the majority of individuals in our nation’s jails. Current statutory schemes give judges almost complete discretion to order pretrial detention based on unexplained or unidentified factors. With this discretion, judges tend to make inconsistent decisions in every jurisdiction, some releasing almost all defendants — including the most dangerous — and others detaining most defendants — even those who are safe to release. There are constitutional and moral reasons to evaluate our current detention scheme, but even the fiscal impact of pretrial detention alone calls for an empirical analysis. Although legal scholarship has applied cost-benefit analysis to other areas of criminal law, this Article is the first attempt at conducting such analysis in the pretrial arena. This Article compares the risk posed by each defendant and the cost of any crimes they may potentially commit while released with the costs incurred by detaining these defendants. The results show that relying on the cost-benefit model provided here, judges could bring significant savings – approximately $78 Billion, increased safety, and potentially more equitable pretrial detention decisions.”

Disentangling Flight Risk from Dangerousness, 2016 B.Y.U.L. Rev. 837
“There is a growing national consensus about the urgent need to shrink the population of pretrial detainees and to fix our broken money bail system. Even as scholars and reformers are showing renewed interest in pretrial detention and bail, however, they have neglected a fundamental pretrial problem: the conflation (by judges and in statutes) of flight risk and danger. Reformers have offered up an array of proposals and increasingly sophisticated risk assessment tools that promise to improve judicial decision-making, but many of these tools merge flight risk and danger in ways that reinforce problematic legislative and judicial practices.

This Article identifies the legal and practical reasons that judges must evaluate flight risk independently of danger. Federal and state constitutions and statutes include detention and bail provisions that require judges to make separate determinations of flight risk and dangerousness. There are also compelling policy arguments for separating flight from danger. First, combining risks may cause judges to overestimate both kinds of risks. Second, forcing separate analyses of pretrial risks may provide judges with much-needed political cover (alleviating pressure to detain). In addition, isolating the two types of risks offers an opportunity to improve judicial accountability and system legitimacy. Finally, the conditions of release that judges employ to mitigate flight risk are different from those that are used to manage danger. Disentangling flight risk from dangerousness will be a critical piece of efforts to improve pretrial decision-making and reduce unnecessary pretrial detention.”

Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes, SSRN (2017)
“Instrumenting for detention status with the bail-setting propensities of rotating magistrates I [Megan T. Stevenson] find that pretrial detention leads to a 13% increase in the likelihood of being convicted, an effect explained by an increase in guilty pleas among defendants who otherwise would have been acquitted or had their charges dropped. On average, those detained will be liable for $128 more in court fees and will receive incarceration sentences that are almost five months longer. Effects can be seen in both misdemeanor and felony cases, across age and race, and appear particularly large for first or second time arrestees. Case types where evidence tends to be weaker also show pronounced effects: a 30% increase in pleading guilty and an additional 18 months in the incarceration sentence. While previous research has shown correlations between pretrial detention and unfavorable case outcomes, this paper is the first to use a quasi-experimental research design to show that the relationship is causal.”

Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711 (2017)
“In misdemeanor cases, pretrial detention poses a particular problem because it may induce otherwise innocent defendants to plead guilty in order to exit jail, potentially creating widespread error in case adjudication. While practitioners have long recognized this possibility, empirical evidence on the downstream impacts of pretrial detention on misdemeanor defendants and their cases remains limited. This Article uses detailed data on hundreds of thousands of misdemeanor cases resolved in Harris County, Texas — the third largest county in the U.S. — to measure the effects of pretrial detention on case outcomes and future crime. We find that detained defendants are 25% more likely than similarly situated releases to plead guilty, 43% more likely to be sentenced to jail, and receive jail sentences that are more than twice as long on average. Furthermore, those detained pretrial are more likely to commit future crime, suggesting that detention may have a criminogenic effect. These differences persist even after fully controlling for the initial bail amount as well as detailed offense, demographic, and criminal history characteristics. Use of more limited sets of controls, as in prior research, overstates the adverse impacts of detention. A quasi-experimental analysis based upon case timing confirms that these differences likely reflect the casual effect of detention. These results raise important constitutional questions, and suggest that Harris County could save millions of dollars a year, increase public safety, and reduce wrongful convictions with better pretrial release policy.”

Drawing Blood from Stones: Legal Debt and Social Inequality in the Contemporary United States, 115 Am. J. Soc. 1753 (2010)
“The expansion of the U.S. penal system has important consequences for poverty and inequality, yet little is known about the imposition of monetary sanctions. This study analyzes national and state-level court data to assess their imposition and interview data to identify their social and legal consequences. Findings indicate that monetary sanctions are imposed on a substantial majority of the millions of people convicted of crimes in the United States annually and that legal debt is substantial relative to expected earnings. This indebtedness reproduces disadvantage by reducing family income, by limiting access to opportunities and resources, and by increasing the likelihood of ongoing criminal justice involvement.”

Fixing Bail, 84 Geo. Wash. L. Rev. 417 (2016)
“This Article applies an agency cost model to bail, observing that the interests of judges diverge from those of their legislative principals, causing them to err on the side of detention and stiff bond requirements. Judges receive little or no recognition for releasing defendants who pose little threat of flight or violence, and are subject to few penalties for detaining them. Yet they, unlike legislators, face the possibility of public scorn (and for elected judges, lost votes) for releasing defendants who flee or commit crimes. Compounding the problem, judges do not internalize the enormous costs to society of detaining millions of defendants pretrial. To fix bail, we must address the principal-agent problem at the heart of the system. Due to separation of powers concerns, legislatures typically cannot use traditional means of monitoring and controlling agents, such as punishment through compensation reductions or termination of employment. I [Samuel R. Wiseman] therefore propose a novel approach — the use of mandatory bail guidelines to rein in judicial discretion, and its concomitant agency costs, in the bail process. Although relying on judges to assess risk was once a necessary evil, the development of statistically-validated, actuarial risk assessment tools has made this solution feasible. Relying on actuarial models instead of hurried, poorly-incentivized judges would reduce agency costs and improve accuracy, bringing meaningful change to a deeply troubled system.”

Fixing New York’s Broken Bail System, 16 CUNY L. Rev. 9 (2012-2013)
“Not only does the bail decision have an impact on the likelihood of conviction, but it also affects sentencing. There is a saying among criminal defense attorneys: “Once you are out, you stay out.” Every defense attorney knows that if someone is out, that person is likely to receive a non-incarceratory sentence even if he or she is convicted of a crime. However, if the same person is in on bail when convicted, he or she is likely to receive a jail or prison sentence. The differences in sentences for those who are in and those who are out are stark. If someone is in because she can’t afford the bail, that person is almost three times more likely to receive a jail sentence if convicted than if she is out on bail. Even when people who are out receive jail sentences, their sentences will invariably be shorter than their counterparts who are held in on bail. These statistics are supported by a report issued by The Bronx Freedom Fund, a bail fund that was created by The Bronx Defenders. For over two years, the Fund posted bail for 186 people who did not have the financial resources to secure their own freedom. Fifty percent of those cases were dismissed on motion of the prosecution; in cases where there was a conviction, the prosecution did not seek a jail sentence in a single case. The effect of bail on case outcomes is unconscionable and a perversion of everything the criminal justice system is supposed to stand for. But the impact that it has on people’s lives is nothing short of devastating.”

Heavy Costs of High Bail: Evidence from Judge Randomization, 45 J. Legal Stud. 471 (2016)
“In the United States, roughly 450,000 people are detained awaiting trial on any given day, typically because they have not posted bail. Using a large sample of criminal cases in Philadelphia and Pittsburgh, we analyze the consequences of the money bail system by exploiting the variation in bail-setting tendencies among randomly assigned bail judges. Our estimates suggest that the assignment of money bail causes a 12% rise in the likelihood of conviction, and a 6-9% rise in recidivism. Our [Arpit Gupta et al.] results highlight the importance of credit constraints in shaping defendant outcomes and point to important fairness considerations in the institutional design of the American money bail system.”

Immediate Consequences of Pretrial Detention: Evidence from Federal Criminal Cases, SSRN (2017)
“This paper presents evidence of the effects of pretrial detention status on criminal case outcomes in federal criminal cases. I [Stephanie Holmes Didwania] find that criminal defendants who are released pending trial earn a roughly 72 percent decrease in sentence length and a 36 percentage-point increase in the probability of receiving a sentence below the recommended federal sentencing Guidelines range. Pretrial release also reduces the probability that a defendant will receive at least the mandatory minimum sentence—when one is charged—by 39 percentage points, but does not affect the probability that the defendant will face a mandatory minimum sentence. To address the identification problem inherent in using pretrial detention status as an explanatory variable, I take advantage of the fact that pretrial release in federal courts is typically determined by magistrate judges who vary in their propensities to release defendants pending trial. This setting allows magistrate judge leniency to serve as an instrumental variable for pretrial release. I also present suggestive evidence of the mechanism at work. It appears that pretrial release affects case outcomes in two distinct ways: most importantly, by giving defendants the opportunity to present mitigating evidence at sentencing and, secondly, by making it easier for defendants to earn a sentencing reduction by providing substantial assistance to the government. In contrast, this paper does not find evidence that pretrial release improves defendants’ abilities to bargain with prosecutors. I also find that the effects of pretrial detention status on case outcomes are heterogeneous, and most pronounced for drug offenders.”

Implications of Incorporating the Eight Amendment Prohibition on Excessive Bail, 43 Hofstra L. Rev. 1039 (2015)
“In its opinion in McDonald v. City of Chicago, 130 S.Ct. 3020 (2010), concerning the incorporation of the Second Amendment, the Supreme Court included a footnote that listed the Eighth Amendment prohibition on excessive bail as one of the incorporated Bill of Rights protections. Oddly, the Court had never incorporated the bail clause or even explained what protections it conferred. While strange, these circumstances provide a rare opportunity to reason backward from incorporation to the meaning of the incorporated provision. And by pursuing those backward implications, the paper offers novel arguments about the proper understanding of the bail clause.”

Judicial Bond-Setting Behavior: The Perceived Nature of the Crime May Matter More Than How Serious It Is, 20 Psych. Pub. Pol. and L. 411 (2014)
“Whether a criminal defendant will be released on bail or held in jail pretrial is one of the first decisions made in a criminal prosecution. This study examined whether a certain group of defendants is subject to the setting of higher bonds by virtue of the subjectively perceived nature of the offense with which the defendants are charged. We specifically tested whether, despite lower overall rearrest rates, judges are imposing higher bonds on defendants charged with a sex offense than on defendants charged with a nonsex offense of equal statutory offense level. Results showed a statistically significant difference in the bond rates between sex offenders and nonsex offenders, with the mean sex offense bond being set approximately $30,000 higher than the mean nonsex offense bond, despite controlling for level of offense, sex of the defendant, and judge setting the bond amount. Given the high costs of pretrial detention to both the defendant and the state, the utility of empirically based bond setting is discussed.”

Intake Prosecutor: Prosecutorial Screening Before the Police Make Warrantless Arrests, SSRN (2017)
“Prosecutorial screening of warrantless arrests helps individuals by preventing wrongful arrests, unnecessary bail, embarrassing mug shots, loss of employment, and wrongful convictions. Avoiding unnecessary arrests also reduces jail overcrowding, and lowers the burden on judges, clerks, prosecutors, public defenders, and even the police. Yet, in almost all jurisdictions, prosecutors do not screen warrantless arrests. This article explores how prosecutors in more than forty different offices interact with police at the moment of warrantless arrests. It makes the case for rigorous prosecutorial screening before any suspect is taken into custody.”

Legitimacy, Authority, and the Right to Affordable Bail, SSRN (2017)
“Bail reform is hot. Over the past two years, jurisdictions around the country have moved to limit or end money-bail practices that discriminate against the poor. While cheered by many, bail reform is vehemently opposed by the powerful bail-bond industry. In courts around the country, lawyers representing this industry have argued that reform is unnecessary and even unconstitutional. One particularly insidious argument advanced by bail-bond apologists is that a “wall of authority” supports the proposition that “bail is not excessive merely because the defendant is unable to pay it.” In other words, authority rejects the right to affordable bail.

This Article critically examines this “wall of authority” and evaluates the true doctrinal standing of the right to affordable bail. After developing a novel rhetorical account of legitimacy in constitutional argument, the Article demonstrates that authority supporting the bail-bond position is illegitimate in two senses – it is formally invalid and normatively “out of bounds.” The authority is formally invalid because it originates from a single implausible constitutional interpretation then echoed blindly in the name of following precedent. It is normatively inappropriate because it ignores Supreme Court doctrine that requires equal justice for indigents facing incarceration. Some walls are obstacles to freedom and justice. To liberate Eastern bloc societies oppressed by totalitarianism, President Reagan famously implored Mikhail Gorbachev to tear down the Berlin wall. The metaphorical “wall of authority” endorsed by the bail-bond industry also imperils liberty – so this Article tears it down with original rhetorical theory and robust doctrinal analysis.”

Liberty Takings: A Framework for Compensating Pretrial Detainees, 26 Cardozo L. Rev. 1947 (2005)
“This Article shows how the application of a takings paradigm to pretrial detention can mitigate the distorted incentives which shape bail hearings and plea bargaining. The case for compensating pretrial detainees poses challenges because the existence of probable cause of having committed a criminal offense combined with the presence of other risk factors formally legitimizes bail hearing decisions. However, this Article analogizes the taking of people to the taking of property to argue that pretrial detention constitutes a liberty taking which inflicts punishment on unconvicted defendants and creates incentives for false pleas and other perversions of justice. While society faces potential risks and costs from pretrial release, this Article will argue that compensating detainees who are never convicted or whose ultimate conviction could not reasonably have justified the initial detention decision will help to level the playing field for defendants in bail hearings and plea bargaining. This Article will conclude by showing how liberty takings can be designed to produce significant incentives for state actors to screen cases more thoroughly and to rely more extensively on less restrictive alternatives than pretrial detention.”

Litigating Money Bail Away: A Dim Future for the Status of the Poor Under the 14 Amendment, SSRN (2017)
“This essay is the first to analyze the possibility of ongoing litigation around bail reform to resurface 14th amendment jurisprudence regarding the status of the poor. Fifty years after Professor Caleb Foote predicted the coming constitutional crisis arising from the injustices generated by our financially based system of pretrial release—money bail—the underlying constitutional issues may soon finally reach the highest court in the land. As recent scholarship demonstrates, however, current Supreme Court jurisprudence may not look favorably at those petitioners who wish to expand Fourteenth Amendment protections to the indigent. Worse yet, precisely as these issues are resurfacing, the court is likely on the heels of a significant movement toward the right—producing a court ideologically inclined to be deaf to increasingly audible concerns in support of the poor.

In this essay, first, I [Mel Gonzalez] contextualize the current bail system, drawing on criminal justice and social science research, to reveal a dim picture of the inequities it produces. I then overview the growing movement for bail reform, focusing on the recent package of lawsuits brought by Equal Justice Under Law in states across the country. Then I assess the constitutional analysis marshaled by these lawsuits, supplementing their claims with my own additional synthesis of evolving jurisprudence, and evaluating their likelihood of success. I argue that given existing jurisprudence, petitioners will have to seek heightened judicial scrutiny in order to push the Court to render the bail system unconstitutional. To attain the Court’s heightened scrutiny, petitioners will have to compel the Court to address wealth as the grounds for suspect class determination. Finally, I extend my analysis to the potential positions that a new and more conservative court under President Trump may take regarding the Fourteenth Amendment jurisprudence analyzed in the prior section.”

Meta-Analytic Review of Pretrial Research: Risk Assessment, Bond Type, and Interventions, SSRN (2016)
“This study makes an attempt to aggregate, via meta-analysis, what we currently know about pretrial decision making and jurisdictions’ responses to the pretrial population. This meta-analysis began with an exhaustive search for pretrial research which may have revealed the most prominent finding — that being a distinct lack of research that utilizes any amount of methodological rigor. We identified a large number of studies that met our most general criteria (i.e., research about pretrial decision making) but mainly dealt with legal and/or philosophical issues regarding pretrial detention and due process. Studies that utilized empirical data and strong methodological designs were distinctly lacking. Of the studies that could be included, effect sizes were generated that may show some promise for court notification programs, pretrial supervision practices, and the potential effect of restrictive bond schedules. However, strong conclusions cannot be made as the quality of the pretrial research, overall, is weak at best.

The findings of this study hold several policy implications for the field of pretrial research and practice. First, future research studies in the field of pretrial need to focus on methodological quality and rigor. Second, it appears that some conditions of release may be related to a defendant’s likelihood of failure to appear. Third, it appears that none of the conditions of release reviewed in this study are related to a defendant’s likelihood of re-arrest while on pretrial release. Finally, it is recommended that the field of pretrial develop a sound research agenda and execute that plan with rigor, transparency, and an approach that favors the continued cumulation of knowledge.”

Nickel and Dimed into Incarceration: Cash-Register Justice in the Criminal System, 57 B.C. L. Rev. 1483 (2016)
“Criminal justice debt has aggressively metastasized throughout the criminal system. A bewildering array of fees, fines, court costs, non-payment penalties, and high interest rates have turned criminal process into a booming revenue center for state courts and corrections. As criminal justice administrative costs have skyrocketed, the burden to fund the system has fallen largely on the system’s users, primarily poor or indigent, who often cannot pay their burden. Unpaid criminal justice debt often leads to actual incarceration or substantial punitive fines, which turns rapidly into “punishment.” Such punishment at the hands of a court, bureaucracy, or private entity compromises the Sixth Amendment right to have all punishment imposed by a jury. This Article explores the netherworld of criminal justice debt and analyzes implications for the Sixth Amendment jury trial right, offering a new way to attack the problem. The specter of “cash-register justice,” which overwhelmingly affects the poor and dispossessed, perpetuates hidden inequities within the criminal justice system. I [Laura I Appleman] offer solutions rooted in Sixth Amendment jurisprudence.”

Optimal Bail and the Value of Freedom: Evidence from the Philadelphia Bail Experiment, 49(3) Economic Inquiry 750 (2011)
“This article performs a cost-benefit analysis to determine socially optimal bail levels for felony defendants. We consider jailing costs, the cost of lost freedom to incarcerated defendants, and the social costs of flight and new crimes committed by released defendants. We estimate the effects of changing bail using data from a randomized experiment. We find that the typical defendant in our sample would be willing to pay roughly $1,000 for 90 days of freedom. While imprecise, our optimal bail estimates are similar to the observed levels of bail prior to bail reform.”

Out on Bail: What New York Can Learn from D.C. About Solving a Money Bail Problem, 53 Am. Crim. L. Rev. 799 (2016)
“This Note argues the current proposed amendments for New York’s bail laws– which would require that judges consider a defendant’s dangerousness in addition to his flight risk when setting bail–will not meaningfully reform its current system. If the state wants judges to incorporate a defendant’s public safety risk into their bail determinations in order to end New York’s reliance on money bail, its bail laws must also include a provision that prohibits courts from setting bail at an amount a defendant cannot afford, for the sole purpose of holding them pre-trial. For an example of such a provision New York need only look as far as the District of Columbia. D.C. is the city that spurred the first wave of bail reform in the 1960s and is the best case study for jurisdictions across the country looking to reform their bail systems today.”

Private Interest, Public Sphere: Eliminating the Use of Commercial Bail Bondsmen in the Criminal Justice System, 57 B.C. L. Rev. 1337 (2016)
“The decision to grant bail is the first contact that a judge has with a defendant. If a defendant is unable to pay the set bail amount, this inability affects nearly every aspect of the defendant’s case from beginning to end. Despite attempts to ensure insolvency does not solely determine pretrial detention, the current bail system, in many cases, ensures just that. Special interest groups, specifically the bail bond industry, oppose any reform efforts that aim to decrease the use of money in the administration of bail. Defendants unable to afford a bail bondsman can spend weeks, months, and sometimes years detained while awaiting their day in court. Law and public policy compels courts to secure bail only to the extent that it will guarantee a defendant’s appearance in court. This Note argues that in order to accomplish this, two important changes must occur. First, commercial bail bonds should be eliminated in favor of a system in which cash bail is not the default method of securing pretrial release. Second, all states should establish pretrial services agencies that aid courts in making bail determinations.”

Regulating Commercial Bail in California Through Consumer Protection Law, SSRN (2017)
“Bail bond companies act as gatekeepers to freedom for thousands in California every day. Yet despite their ubiquitous role in our criminal justice system, the current framework regulating the commercial bail industry almost exclusively monitors the relationship between bail companies and the state, but fails to mitigate the wide-ranging variety of harms that bail agents can and often do inflict on their customers. In large part, this is because existing policies frame defendants simply as criminals, erasing their simultaneous position as consumers soliciting a commercial service. As a consequence, consumers who make use of the commercial bail bond system, largely poor individuals of color and their families, remain vulnerable to a system ripe for abuse. This paper presents a novel way to frame the interaction between a bail bond company and its customer as a fundamentally consumer interaction that should, as countless similar goods and services are, be governed by a consumer protection framework. This regime would adequately protect individuals who utilize bail bond companies from abuse and generally encourage a well-functioning commercial bail industry.”

Rethinking Bail Reform, SSRN (2017)
“This Article calls into question the notion that litigation is the sole and superior approach for achieving bail reform. It discusses the history of the American bail system and surveys current scholarly critiques of the system of money bond, as well as recent and pending lawsuits challenging standard bail schedules and the imposition of money bonds in cases of non-violent misdemeanors. The Article then focuses on the limitations of bail reform litigation and the obstacles to achieving reform through the courts. Using specific examples where reform has been achieved outside of litigation, the Article also discusses possible extra-judicial alternatives for holistic bail reform, including community bail funds, travel assistance programs, and legislative amendments. It concludes that, while litigation may be an effective tool for eliminating monetary bonds in certain jurisdictions, the better and more comprehensive approach for bail reform is one that employs both judicial and extra-judicial strategies.”

State Bans on Debtors’ Prisons and Criminal Justice Debt, 129 Harv. L. Rev. 1024 (2016)
“Since the 1990s, and increasingly in the wake of the Great Recession, many municipalities, forced to operate under tight budgetary constraints, have turned to the criminal justice system as an untapped revenue stream. Raising the specter of the “debtors’ prisons” once prevalent in the United States, imprisonment for failure to pay debts owed to the state has provoked growing concern in recent years. Existing approaches have failed to recognize an alternate potential font of authority: state bans on debtors’ prisons, enacted over several decades in the first half of the nineteenth century, as a backlash against imprisonment for commercial debt swept the nation. This Note takes a first pass at this missing constitutional argument.”

Turner in the Trenches: A Study of How Turner v. Rogers Affected Child Support Contempt Proceedings, SSRN (2017)
“In its 2011 ruling in Turner v. Rogers, the Supreme Court held that a nonpaying child support obligor may not be incarcerated in a civil contempt proceeding if he did not have the ability to pay the ordered support or the purge necessary to regain his freedom. The Turner case arose in South Carolina, a state in which civil contempt proceedings are a routine part of the child support enforcement process. The author observed child support contempt proceedings in South Carolina both before and after the Turner decision to assess the extent to which indigent obligors were being held in contempt and incarcerated despite their apparent inability to make the court-ordered payments. Findings from this study confirm that incarceration of indigent child support obligors such as Mr. Turner was common in South Carolina prior to the Supreme Court’s decision, and indicate that judicial treatment of indigent child support obligors remained essentially the same after the Turner decision was handed down.”

Unintended Impact of Pretrial Detention on Case Outcomes: Evidence from NYC Arraignments, Working Paper (U. Chicago 2016)
“In the United States, over 400,000 individuals are in jail each day waiting for their criminal cases to be resolved. The majority of these individuals are detained pretrial due to the inability to post low levels of bail (less than $3,000). We estimate the impact of being detained pretrial on the likelihood of an individual being convicted or pleading guilty, and their sentence length, using data on nearly a million misdemeanor and felony cases in New York City from 2009 to 2013. Causal effects are identified using variation across arraignment judges in their propensities to detain defendants. We find that being detained increases the probability of conviction by causing individuals to plead guilty more often. Because pretrial detention is driven by failure to post bail, these adverse effects disproportionately hurt low-income individuals.”

When Pre-Trial Diversion Programs Disappear: The Need to Protect Diverted Defendants’ Due Process and Liberty Rights, SSRN (2017)
“There exists a fundamental liberty right in America, and a strong presumption in favor of release pending trial. Diversion participants have a due process right to continued participation. Thus, it is crucial to protect these rights. The governing statute or court rule can protect participants in several ways. First, diversion programs should have four types of discharge: successful; neutral; unsuccessful; and voluntary withdrawal. Second, the government should be prohibited from issuing arrest warrants for individuals whose programs were shut down, so long as the individual has not engaged in any other violation; the state also must maintain lists of affected individuals and disseminate those lists to law enforcement and court staff to help prevent a participant’s arrest. Third, when a program is shutdown or lacks space, the participant should remain free and the court clerk should automatically schedule a new court date for all affected to determine whether transfer to other pre-trial programs is appropriate. Fourth, the legislature should provide consistent funding—including a provision for emergency funds. Fifth, the state must track, analyze, and publish data regarding the success of diversion programs. Sixth, the state must identify and create protocols for programs to replace services that fall away.”

Zombie Predictions and the Future of Bail Reform, SSRN (2017)
“In most cases, these newly adopted tools base their predictions on static datasets that predate the current wave of reform. The result is zombie predictions, which are blind to any benefit from recent, risk-mitigating policy changes. At the same moment as they reduce the true risks of pretrial release, jurisdictions across the country are also adopting statistical tools that will blindly predict such risks remain as high as ever. This will overstate risk, diminish the apparent impact of genuinely helpful reforms, and needlessly incarcerate people who could safely be released. To avoid these harms, jurisdictions must tailor their risk assessments based on fresh, local data, comparing predictions against subsequent outcomes to keep their predictions on target. If they fail to do so, then the current attempts at bail reform may become one more chapter in a history of failed reform efforts and unintended consequences that is nearly as old as money bail itself.”

News Articles

5th Circuit Court Will Weigh Harris County’s Cash-Bail System, Houston Chronicle, Oct. 2, 2017
“Harris County’s controversial cash bail system will face new scrutiny Tuesday before a federal appeals court as judges consider whether it violates the constitutional rights of defendants who can’t afford to get out of jail. County attorneys – who have argued that foregoing cash bail puts the public at risk – will ask the 5th U.S. Circuit Court of Appeals to overturn a lower court order that requires indigent misdemeanor defendants be released on personal bonds within 24 hours of their arrest if they don’t have holds or detainers. Attorneys for the inmates will argue that Chief U.S. District Judge Lee H. Rosenthal’s order righted the scales of justice by forcing the county to give low-income defendants the same chance to get out of jail as those with money to post bond. The class-action lawsuit, filed on behalf of a single mother who couldn’t afford to post $2,500 bail for a driver’s license infraction, has divided county officials and cost millions of dollars in legal fees.”

ACLU Challenges Miami-Dade Court’s Removal of Public Defenders from People Facing Criminal Charges, Forcing Them to Represent Themselves, ACLU News, Sept. 28, 2017
“The American Civil Liberties Union and the ACLU of Florida filed a suit today advancing new constitutional arguments to challenge the removal of public defenders from ongoing criminal cases in Miami-Dade County. Miami-Dade Criminal Court Judge Andrew Hague dismisses these attorneys when prosecutors tell him they have decided not to seek jail time, leaving poor defendants with no option but to represent themselves. This practice, which doesn’t affect defendants who can afford private attorneys, violates the Sixth and Fourteenth Amendments.”

ACLU Sues Louisiana Parish for Alleged Bail Extortion Scheme, Reason, Aug. 8, 2017
“Ayo’s story is one of several alleged in a federal class-action lawsuit filed by the American Civil Liberties Union (ACLU) and the Southern Poverty Law Center last night. The suit accuses RHI [Rehabilitation Home Incarceration], Louisiana state judge Trudy White, and East Baton Rouge Parish of racketeering and extortion. According to the lawsuit, the bail scheme has forced hundreds of criminal defendants to pay RHI—a company with political connections to White—to be released from jail, “effectively holding them for ransom” and violating their Fourth and Fourteenth Amendment rights.”

Advocates Urge City’s District Attorneys to Reject Political Gifts from Bail Bond Industry, NY Daily News, Aug. 8, 2017
“Advocates are pushing the city’s district attorneys to swear off political contributions from the bail bond industry. In a letter to all five district attorneys, legal aid and criminal justice reform groups said they should refuse or return any gifts from the industry, which they charged was using its cash to sway pols to oppose bail reform. At least one of the prosecutors, acting Brooklyn DA Eric Gonzalez, who is running for his own term, has received $7,750 from bail companies, records show.”

America Is Waking Up to the Injustice of Cash Bail, The Nation, Oct. 19, 2017
“Nearly everywhere in the country, when a person is arrested, he’s taken to a local jail and then appears before a judge, who determines whether charges will be brought against him and, if so, sets the terms of his release. Most of the time, that entails a price: For a felony, the typical amount is $10,000. If a person can afford to pay the full amount, he’ll be released immediately and receive that money back from the court if he shows up for subsequent hearings. But 44 percent of Americans would struggle to cover a $400 emergency. For those without resources, the path to freedom lies with a bondsman, who typically charges about 10 percent of the full bail amount to act as the guarantor or surety for the rest. If the defendant can’t afford the bondsman’s fee up front, many bond companies will set up an installment plan and charge interest. That money will never be refunded to the defendant, no matter how his case is resolved. Bondsmen, however, don’t have to pay the court anything when they get a client released: They simply promise to ensure that he will show up in court for later hearings. If the client fails to do so, the bondsman must pay the bail in full, but in practice bondsmen usually crack down on whoever signed the bond—family or friends, in most cases—and force them to pay it instead. In most states, the bail industry has successfully pushed laws that make it very difficult for courts to get full bail amounts from bondsmen. Anyone who can’t afford to post bail or pay the bondsman will, like Gisclair, sit in jail until the district attorney makes a decision about whether to go forward with the charges. In New Orleans, that is on average a month for a misdemeanor; for a felony, the average is nearly four months.

In the Orleans Parish Prison, most of the inmates haven’t been convicted of a crime; they are there awaiting trial. About a third of these people languish behind bars because they can’t afford bail. Nationally, arrestees make up 70 percent of the jail population—pretrial detention is a major reason why the United States has the highest incarceration rate in the world. Nearly all of the growth in our jail population over the past 30 years is due to the detention of those not yet convicted of any crime. The number of Americans sitting in jail without a conviction is larger than most other countries’ entire incarcerated population.”

Argument Preview: The Constitutionality of Immigrant Detention, SCOTUSblog, Nov. 23, 2016
“In Jennings v. Rodriguez, the court will consider the question whether immigrants, like virtually any U.S. citizen placed in criminal or civil detention, must be guaranteed a bond hearing and possible release from custody. This case is a class-action challenge to lengthy immigration detentions without any opportunity for release on bond.”

Attorney General Lynch: Treat Defendants as Citizens, Not Cash Registers, Washington Post, Nov. 16, 2016
“Attorney General Loretta E. Lynch urged leaders in the legal profession to overhaul court fees, fines and a money bail system that can lead to a cycle of debt, incarceration and poverty for those who cannot afford to pay. “When we begin to treat defendants as cash registers, rather than citizens, we do more damage to the fabric of our institutions,” Lynch told a crowd of judges, lawyers and law clerks gathered for an annual lecture at the U.S. District Court in Washington, a few blocks from the U.S. Capitol. “We stain the sanctity of our laws. And we only tighten the shackles of those struggling to break the chains of poverty.””

Average Bail for Pretrial Detainees in NYC Doubled to $16,800, Report Finds, Crime Report, April 6, 2017
“The average cash bail set for pretrial admissions in New York City has doubled from $7,800 to $16,800 in the past 15 years, and the pretrial length of stay has increased significantly from 2000 to 2015—even as the admissions for pretrial detention decreased by almost half, according to a new study on pretrial detentions in New York City. The report, released today by the Misdemeanor Justice Project (MJP) at John Jay College of Criminal Justice, said the average time in detention has gone from 40 to 55 days. The study also indicates a dramatic change in the criminal profile of detainees over the 15 year period. While the number of those detained on drug felony charges dropped, violent crime charges increased, representing the highest crime category by 2015.”

Bad Bail Practices and Immigration Policy Led to My Client’s Death at Rikers, Marshall Project, Oct. 22, 2017
“He was incarcerated, caged, stripped of his family, friends, and dignity. Now, just four days before his 28th birthday, he’s dead. This article was published in collaboration with The New York Daily News. When Selmin Feratovic was pronounced dead early Thursday morning at the Otis Bantum Correctional Center on Rikers Island, he had been incarcerated for nearly seven months but had not been convicted of a single crime.”

Bail Industry Campaign Contributions Rise as Maryland Lawmakers Weigh Reform, Baltimore Sun, Jan. 25, 2017
“Campaign contributions from the bail industry to Maryland lawmakers have increased in recent years, as officials have debated reforms to the process that determines whether people are held in jail or released after an arrest, according to a report released Wednesday by Common Cause Maryland. The industry has given a total of $288,550 from 2011 to the present, the government watchdog group found.”

Bail Problem with a Simple Fix, N.Y.L.J., Dec. 29, 2016, at 6
“Over the past several months New York City has taken laudable steps to fix a number of problems related to our bail system. The city has expanded access to charitable bail funds, supervised release and diverted low-level offenses away from the formal arrest process. This represents progress and the hope for more substantive reform. But as a citywide public defender that represents clients in every criminal courtroom throughout this city, we see a number of problems that go beyond the more substantial fixes planned by public officials. Many of these issues, which we believe are the simplest to remedy, relate to payment and processing of bail. Small hiccups at any point in the process can delay somebody’s release and result in unnecessary time on Rikers Island. For the “system” this problem may be minor, but for our individual clients the impact can be devastating. And while some of these problems do not have an easy fix, one does: people who have the money to pay bail should be allowed to do so in court, before being sent to Rikers.”

Bail Reform Act Controls Whether Defendant Released Pretrial; ICE Cannot Detain a Defendant Held for Prosecution, Federal Defenders of NY Blog, July 31, 2017
“In the first decision of its kind within the Second Circuit, Judge Caproni in the S.D.N.Y. held that once a defendant has met the conditions of release imposed under the Bail Reform Act, ICE cannot detain that defendant unless it is actually taking steps to remove him. You can read the opinion in United States v. Galitsa, 17 Cr. 324 (VEC), here.”

Bail Reform Begins with the Bench, N.Y. Times, Nov. 17, 2016
“Increased scrutiny of this city’s [Baltimore] justice system has now expanded to include its sky-high bail amounts. Those accused of a crime may spend months in jail because they were assessed bail far beyond their means, even though nearly 45 percent of all misdemeanor and 30 percent of all felony cases here are ultimately dismissed. It’s a nightmare for low-income families. While those accused of a crime are incarcerated waiting for their trial, their spouses and children suffer lost income and the absence of a parent. Even when a family can get enough money together to make a down payment to a bail bondsman, the resulting debt drains their finances for years.”

Bail Reform Wins Final Passage in Senate, Conn. Mirror, June 7, 2017
“Bail reforms intended to ensure that indigent defendants are not jailed simply for lack of resources won final passage in the [Connecticut] Senate early Wednesday on a 29 to 7 vote. . . . Gov. Dannel P. Malloy proposed sweeping bail reforms that would have largely eliminated a role for bail bond agents, but settled for a compromise that won bipartisan support and acceptance from the bail industry.”

Bail Reforms Disrupt Court Routines Across New Mexico, U.S. News & World Report, Aug. 24, 2017
“Prosecutors, bail bondsmen and public defenders are describing a criminal justice system in upheaval as courtrooms across New Mexico adjust to new bail and pretrial detention rules. . . . New Mexico adopted new rules for pretrial detention and release on July 1 after voters overwhelmingly approved a constitutional amendment that allows dangerous defendants to be held until trial without bail. The amendment also ensures people don’t languish in jail only because they cannot pay money to ensure they appear at trial.”

Bail Reformers Aren’t Waiting for Bail Reform, Marshall Project, Aug. 23, 2016
“The nationwide movement for bail reform is advancing, gradually, through legislatures and courts. Just last week the U.S. Department of Justice filed a friend-of-the-court brief with the 11th Circuit Court of Appeals, arguing for the first time at this level that putting defendants in jail because of their inability to pay bail is unconstitutional. The appeals court is considering the case of a man in Calhoun, Georgia who was kept in jail for six nights on a misdemeanor charge of being a pedestrian under the influence because he could not afford $160 bail. Meanwhile, bail reform advocates increasingly are taking direct action: raising charitable funds they use to put up bail for defendants too poor to pay their way out of jail. These funds have sprung up in recent years in cities across the country, including Boston, Brooklyn, Nashville, and Seattle. Similar funds are currently being explored in St. Louis, Miami, Cincinnati, Oakland, Philadelphia, and Austin. Because bail is typically returned as long as a defendant meets his court obligations, bail funds can be used repeatedly to bail out more people.”

Bail Roulette: How the Same Minor Crime Can Cost $250 or $10,000, Guardian, Sept. 20, 2017
“People arrested for minor misdemeanors in Mariposa County are on the hook for $10,000 bail, which is supposed to insure someone shows up to court, whether the charges have merit or not. Those who can’t afford the nonrefundable bail bond fee – usually 10% of bail, or $1,000 in Mariposa cases – sit in jail until their case makes it in front of a judge. Compare that to the neighboring Mono County, where recommended bail is $250 for minor offenses, or the rural Sierra, Placer and Nevada counties, where some minor offenders are released without bail. The disparities are part of a haphazard system that allows each of California’s counties to set its own bail – a system found in most states. The Guardian looked at California to try and get a sense of the dynamics across a large state. An inspection of bail schedules in 56 of California’s 58 counties – rural Humboldt and Amador counties did not respond to repeated requests – shows huge disparities in how misdemeanor bail is handled. The analysis showed big differences even regarding minor crimes that would lead to little or no jail time upon conviction.”

Bail Schedules Are Unconstitutional and Bad Public Policy, DOJ says, ABA J., Aug. 22, 2016
“The U.S. Department of Justice has filed an amicus brief condemning the use of financial bail. According to the Christian Science Monitor, the U.S. Department of Justice filed an amicus brief last week in Walker v. City of Calhoun, Georgia, a challenge to that city’s use of financial bail. The plaintiffs in that case allege that Calhoun’s use of a bail schedule—a document that lists set financial amounts corresponding to offenses—violates the 14th Amendment due process and equal protection rights of those arrested.”

Bail System Ruled Unconstitutional in Texas’ Biggest County, Governing.com, May 1, 2017
“A federal judge in Houston Friday issued a scathing denouncement of Harris County’s cash bail system, saying it is fundamentally unfair to detain indigent people arrested for low-level offenses simply because they can’t afford to pay bail. In a 193-page ruling released Friday, Chief U.S. District Judge Lee H. Rosenthal ordered the county to begin releasing indigent inmates as early as May 15 without posting cash bail while they are awaiting trial on misdemeanor offenses. Rosenthal concluded the county’s bail policy violates the due process and equal protection clauses of the Constitution, and granted “class-action” status to the case, meaning that her findings will apply to all misdemeanor defendants.”

Bail Trap, N.Y. Times, Aug. 13, 2015
“But as bail has evolved in America, it has become less and less a tool for keeping people out of jail, and more and more a trap door for those who cannot afford to pay it. Unsecured bond has become vanishingly rare, and in most jurisdictions, there are only two ways to make bail: post the entire amount yourself up front — what’s called ”money bail” or ”cash bail” — or pay a commercial bail bondsman to do so. For relatively low bail amounts — say, below $2,000, the range in which most New York City bails fall — the second option often doesn’t even exist; bondsmen can’t make enough money from such small bails to make it worth their while.

With national attention suddenly focused on the criminal-justice system, bail has been cited as an easy target for reformers. But ensuring that no one is held in jail based on poverty would, in many respects, necessitate a complete reordering of criminal justice. The open secret is that in most jurisdictions, bail is the grease that keeps the gears of the overburdened system turning. Faced with the prospect of going to jail for want of bail, many defendants accept plea deals instead, sometimes at their arraignments. New York City courts processed 365,000 arraignments in 2013; well under 5 percent of those cases went all the way to a trial resolution. If even a small fraction of those defendants asserted their right to a trial, criminal courts would be overwhelmed. By encouraging poor defendants to plead guilty, bail keeps the system afloat.”

Behind Many ‘Mom and Pop’ Bail Bonds Shops Is a Huge Insurance Corporation Out to Profit from Misery, ACLU Blog, May 11, 2017
“As detailed in a report released today by Color of Change and the American Civil Liberties Union’s Campaign for Smart Justice, every year millions of people are locked up in jail nationwide before they even get their day in court — all because they cannot afford to post bail and buy their freedom. Some, like Melodie, are able to pool resources together, often with the help of family members, to pay the nonrefundable 10 percent fee for-profit bail companies typically charge. This is a hardship masquerading as a tool of justice. The report, “Selling Off Our Freedom: How Insurance Corporations Have Taken Over Our Bail System,” exposes insurance corporations’ hand in creating an unnecessary and largely unaccountable $2 billion bail industry that ensnares thousands of people in detention or debt – or both. Insurers, including corporations like Bail USA, Seneca Insurance, and United States Surety, collect around 10 percent of the premium bail agents charge families.”

Bond Agents Must Return Premiums When Defendants Denied Bail, Court Finds, N.Y.L.J., June 27, 2017
“A bail bond agent cannot keep the premium when a criminal defendant was denied bond and never released from custody, the state Court of Appeals ruled Tuesday. The decision unanimously settled an issue that was in play at the U.S. Court of Appeals for the Second Circuit in the case of Arthur Bogoraz, whose wife and friends posted $2 million bond for Bogoraz following his 2011 arrest for a multimillion insurance fraud in Brooklyn.”

Bond Court Reforms May Lead to More Punitive Pretrial Conditions: Report, Chicago Reporter, Oct. 25, 2017

“Bond reform activists scored a major victory this summer when Chief Circuit Court Judge Timothy Evans announced an order aimed at curbing monetary bonds that disproportionately hurt low-income defendants. Judges are now required to set affordable bond for defendants who are not a risk to public safety. They must also impose the “least restrictive conditions” needed to ensure a defendant appears in court, and to maintain public safety. But those reforms could have unintended consequences, a major reform group says, by increasing the use of restrictive pretrial conditions that they say can be as onerous as jail. The reforms went into effect in Central Bond Court last month. Pretrial conditions such as electronic monitoring and curfews, “restrict the liberty of innocent people and even mimic the same harms as pretrial incarceration, causing loss of jobs, housing, access to medical care, and putting severe strain on social support networks and family members,” the Chicago Community Bond Fund asserts in a new report released Tuesday. The bond fund posts bail for people who can’t afford it and advocates abolishing monetary bond altogether, an idea that is gaining traction nationally.”

California Bail System Disadvantages Poor, Paper Chase (Jurist), Apr. 12, 2017
Human Rights Watch [advocacy website] issued a report [text] on Tuesday saying California’s bail system pressures the poor into pleading guilty in order to be released from jail. The group said tens of thousands of Californians have been held for days to months without a conviction [press release]. It also said California’s median bail rates are five times that of the rest of the country and many incur debt in order to pay the bondman’s fee. HRW called on California to change its pretrial detention system to one that only impose bail on those who pose a serious threat to society. The system should favor “release and assesses the risk of danger in an individualized, contextual way.””

California Lawmakers Want to Reform a Bail System They Say ‘Punishes the Poor for Being Poor’, Los Angeles Times, Dec. 4, 2016
“California lawmakers next year will make it a top priority to reform the system through which judges award criminal offenders bail, saying courts across the state are punishing “the poor for being poor.” Assemblyman Rob Bonta and Sen. Bob Hertzberg said they plan to fire the first salvo Monday, when lawmakers descend upon the Capitol for the start of the 2017 legislative session. They will introduce bills stating the Legislature intends to enact laws that will reduce the number of people detained before trial and address the racial and economic disparities in the bail process.”

California’s Chief Justice Calls for End to Cash Bail System California’s Chief Justice Calls for End to Cash Bail System, Courthouse News, Oct. 24, 2017
“Calling the state’s cash bail system unsafe and unfair, California Supreme Court Chief Justice Tani Cantil-Sakauye released a report Tuesday she hopes will help shape the future of pretrial detention in California. “I support the conclusion that California’s current pretrial system unnecessarily compromises victim and public safety and agree with the recommendation to replace our current system of money bail with one based on a defendant’s risk to the public,” the chief justice said in a statement. “This report should serve as a framework as we work with the governor and the Legislature to address these issues that are central to our values and responsibilities of providing fair and equal access to justice for all Californians.””

Cash Bail, a Cornerstone of the Criminal-Justice System, Is Under Threat, Wall Street Journal, May 22, 2017
“More U.S. cities and states are reducing their reliance on cash bail, rejecting the longstanding notion that money should determine whether arrested individuals are locked up until trial. The movement is upending a cornerstone of the American criminal-justice system and threatening to deal the most severe blow to the multibillion-dollar bail-bonds industry since it began in the late 1800s.”

Cash Bail’s Lonely Defender, N.Y. Times, Aug. 25, 2017
“The growing consensus against cash bail cuts across party lines, and includes law enforcement leaders, prosecutors, defense lawyers, the courts and religious leaders. The only defender of the system, it seems, is the industry that profits from it. States and localities around the country have begun imposing long overdue reforms to their bail systems. But the multibillion-dollar bail-bond industry, which charges defendants to guarantee their appearance in court, is pushing hard in the other direction. The Times reported Monday on two lawsuits filed in federal court in New Jersey over the summer challenging a new state law that essentially eliminates money bail. Another suit, in New Mexico, challenges that state’s Supreme Court’s new rules governing bail. The industry is also fighting federal bail reform legislation.”

Changes in New Mexico, AJA Blog, June 19, 2017
“New Mexico’s supreme court has overhauled the state’s rules of practice and procedure to make the detention system more transparent and rational. The revised rules do not eliminate the use secured money bond, but they do take New Mexico closer to a pretrial system that balances fairness and public safety effectively and transparently.”

Charged a Fee for Getting Arrested, Whether Guilty or Not, N.Y. Times, Dec. 26, 2016
“Kentucky bills people held in its jails for the costs of incarcerating them, even if all charges are later dismissed. In Colorado, five towns raise more than 30 percent of their revenue from traffic tickets and fines. In Ferguson, Mo., “city officials have consistently set maximizing revenue as the priority for Ferguson’s law enforcement activity,” a Justice Department report found last year. An unusual coalition of civil rights organizations, criminal defense lawyers and conservative and libertarian groups have challenged these sorts of policies, saying they confiscate private property without constitutional protections and lock poor people into a cycle of fines, debts and jail. The Supreme Court has already agreed to hear a separate challenge to a Colorado law that makes it hard for criminal defendants whose convictions were overturned to obtain refunds of fines and restitution, often amounting to thousands of dollars. That case, Nelson v. Colorado, will be argued on Jan. 9.”

Chipping Away at New York City’s Unjust and Misguided Bail System, Think Justice Blog (Vera Institute of Justice), Apr. 29, 2016
“This is the first blog post in a series about bail reform in New York City.”

Civil Rights Suit Over Brooklyn Central Booking Conditions Clears Hurdle, N.Y.L.J., Feb. 21, 2017
“A federal appeals court has reinstated a civil rights lawsuit filed by a group of plaintiffs who they were subjected to unsafe and unsanitary conditions while detained at Brooklyn Central Booking. In a partial reversal of Eastern District William Kuntz II’s August 2015 decision to grant summary judgment for New York City, the U.S. Court of Appeals for the Second Circuit said Tuesday that Kuntz erred in dismissing the plaintiffs’ claims on the basis that they were held for less than 24 hours.”

Costs of Money Bail to Justice, Harv. L. Rev. Blog, Oct. 17, 2017
“More than 200,000 bail bonds are posted in California each year, generating $308 million in non-refundable premium fees from accused persons, their families, and friends who post bail for them. Being detained in custody pretrial, even for a short period of time, can threaten an individual’s employment, housing, financial stability, and family. With roughly 90% of all court cases litigated in state court justice systems, judicial branch leadership in every state is taking the need for rethinking and reform seriously.”

County in North Carolina Wants to Give Its Bail System a Serious Makeover, In Justice Today, Oct. 13, 2017
“Last week, the MacArthur Foundation rewarded a $2 million grant to Mecklenburg County, North Carolina, as part of an effort to reform aspects of its criminal justice system. The grant calls for a focus on the county’s bail system, which continues to trap people behind bars because they are poor — even though they haven’t been convicted of a crime. The grant represents an important step toward making the bail system one based on a defendant’s risk to the community, rather than their ability to pay. The MacArthur Foundation selected Mecklenburg, the largest county in North Carolina, as well as seven other counties to receive funding and technical support as part of its Safety and Justice Challenge. The Challenge first launched in 2015 to encourage local jurisdictions to evaluate their jail practices and implement strategies that can reduce the number of people languishing behind bars.”

Correcting America’s Bail Crisis Isn’t Out of Reach, Crime Report, Mar. 22, 2017
“On any given day in the United States there are about 450,000 people in jail who have not been convicted of anything. According to the Pretrial Justice Institute, they cost taxpayers about $38 million a day. Those 450,000 people have been charged with a crime, and all—except for a small percentage facing life in prison—have a right to be free. These men and women sit in jail because they do not have the money to get out, pending trial.”

Councilman Asks DOJ to Probe City Bail Policies, N.Y.L.J., Aug. 25, 2016, at 1
“A New York City councilman is calling for a Justice Department investigation into the bail system in the city, citing thousands of indigent defendants languishing in Rikers Island because they can’t pay $500 or $1,000 in bail money. In an Aug. 22 letter to Attorney General Loretta Lynch and Southern District U.S. Attorney Preet Bharara, Councilman Rory Lancman requested the U.S. Justice Department investigate whether bail and pretrial detention practices for indigent defendants in New York violate the Constitution. His letter cited data from the city’s Department of Corrections showing about 53 percent of inmates incarcerated on Rikers Island were detained due to inability to post bail.”

Court Costs Entrap Nonwhite, Poor Juvenile Offenders, N.Y. Times, Aug. 31, 2016
“The ways that fines and fees can entrap low-income people in the adult courts has received enormous attention in the past year or two. But the systematic imposition of costs on juvenile offenders, with equally pernicious effects on the poorest of them, is far less known. . . .

Fines, fees and restitution mandates are levied on juvenile offenders to varying degrees in every state, a new national survey of these practices has found. The effects are greatest on the poor and racial minorities, creating a two-tiered system of justice, according to the report, published by the Juvenile Law Center, a legal aid and advocacy group in Philadelphia.”

Court Rebuffs Challenge to New Jersey’s Bail Reform Law, Constitutional Law Prof Blog, Sept. 22, 2017
“Judge Jerome B. Simandle (D.N.J.) today declined to halt New Jersey’s bail-reform law. The law provides for alternative, non-monetary pretrial release options in order to give poor defendants (who often can’t afford bail) a shot at pretrial release while still serving other criminal justice interests. The plaintiffs in the case argued that the law violated the Eighth Amendment, due process, and the Fourth Amendment. The preliminary ruling, denying the plaintiffs’ motion for a preliminary injunction, leaves the law in place, for now. But today’s order isn’t a final ruling on the merits.”

Court Systems Rethink the Use of Financial Bail, Which Some Say Penalizes the Poor, ABA J., Apr. 1, 2016
“Advocates for the poor have long argued that financial bond is neither fair nor safe. By conditioning freedom on the ability to pay, they say, bail systems needlessly imprison poor defendants who pose no threat. Meanwhile, wealthy people go free regardless of what danger they might pose. Fifty years ago, those arguments led Congress to pass the Bail Reform Act of 1966, which eliminated financial bond for most federal defendants. But over the next few decades, the issue fell out of the public eye. Now, the issue is once again being discussed, fueled by increasing bipartisan agreement and interest from the DOJ. This time, local jurisdictions are exploring—voluntarily or otherwise—alternatives to financial bail.”

Criminal Injustice, Harvard Magazine, Sept.-Oct. 2017
“The specter of a CRC [Civil Rights Corps] lawsuit may also be persuading municipalities to reform on their own. The American criminal system is not a monolith—rather, it’s an agglomeration of federal, state, and especially local authorities, many of which operate in practice as individual fiefdoms. (The United States contains, for example, roughly 6,000 detention centers and 15,000 state and local courts spread across 3,000 counties.) Changing them one by one, in other words, is hard. But what [Alec] Karakatsanis accomplishes when he wins in “a small town in Alabama,” Judge Morrison points out, goes beyond the city limits. Other judges, city counselors, and mayors, he explains, look at the litigation, “see that Alec is winning,” and suddenly realize that they’re vulnerable, because they do things the same way. “And so rather than wait to have Alec ride into town,” he continues, local officials figure, “‘[W]e better see if we can proactively try to avoid being called to account.'””

Cutting Bail Costs in Half ‘Could Save Billions’, Crime Report, Mar. 22, 2017
“On any given day in the United States there are about 450,000 people in jail who have not been convicted of anything. According to the Pretrial Justice Institute, they cost taxpayers about $38 million a day. Those 450,000 people have been charged with a crime, and all—except for a small percentage facing life in prison—have a right to be free. These men and women sit in jail because they do not have the money to get out, pending trial.”

Dangerous Domino Effect of Not Making Bail, Atlantic, Apr. 12, 2016
“America’s criminal justice system is a patchwork of local, state, and federal policies that together resemble a maze with too many entrances and too few exits. When low-risk people enter this maze after arrest, pretrial policies can ruin their lives.”

Davidson County, TN’s Cash Bail System Under Scrutiny, In Justice Today, July 19, 2017
“The American Civil Liberties Union of Tennessee and the Civil Rights Corps are calling for an end to cash bail in Davidson County, a practice that keeps thousands of people locked up every year because they are poor. Hedy Weinberg, executive director of the ACLU of Tennessee, and Alec Karakatsanis, executive director of Civil Rights Corps, wrote in an op-ed that bail practices in Davidson County, which is Tennessee’s second-most populous county and has Nashville as its county seat, need reform and that the present practice is likely unconstitutional.”

D.C. Jail Held Man for 77 Days After His Case Was Dropped Until Another Inmate Flagged an Attorney, Washington Post, Oct. 1, 2017
“The city this fall is set to start paying $6 million awarded in the latest, 2013 overdetention settlement, reached after then-U. S. District Chief Judge Royce C. Lamberth of Washington blasted the city’s failure to deliver on promised reforms as “conscience-shocking.” A new class-action lawsuit on behalf of prisoners alleges the government is hiding the extent of errors, citing recent overdetentions such as Harris’s. In responses to some of those pending claims, lawyers representing the District say the system has heeded past calls for improvements and dramatically cut down on mistakes.”

Defendants Can’t Be Jailed Solely Because of Inability to Post Bail, Judge Says, N.Y. Times, July 17, 2017
“The chief judge of the Circuit Court of Cook County, Ill., issued an order on Monday that bail-reform advocates hope will be a turning point in the national controversy over requiring defendants to pay more money than they can afford in order to be set free on bail before their trials. The judge, Timothy C. Evans, announced that judges in Chicago could still set bail to ensure that defendants appear in court. But they will be required to determine whether the “defendant has the present ability to pay the amount necessary.” In other words, it will no longer be possible to set bail so high that people do not have enough money to pay for their release, which could mean they remain in jail for months or even years before a trial, a plea bargain or a dismissal.”

DFS to Bail Bondsmen: No Bail, Return Premium, N.Y.L.J., Aug. 29, 2017
“Bail bond agents and bail insurers cannot keep the premium when a criminal defendant is denied bond and not released, the [New York] state Department of Financial Services reminded the insurance companies Tuesday. In a letter to insurers, the Department of Financial Services reminded bail agents and insurers that they must “promptly return to indemnitors all premiums and compensation paid for bail bonds for defendants who are not released from custody after a court does not accept the bail bond as the result of a bail sufficiency hearing.””

DOJ, ABA: Financial Bail System Is Unconstitutional, Bad Policy, Prison Law Blog, Sept. 16, 2016
“The U.S. Department of Justice (DOJ) and the American Bar Association (ABA) have each submitted amicus curiae “friend of court” briefs in a class-action lawsuit that attacks the bail system used by the city of Calhoun, Georgia.”

DOJ Files Amicus Brief Supporting Man’s Claim That Georgia’s Bail Schedule System is Unconstitutional, EvidenceProf Blog, Aug. 26, 2016
“Yes, that’s right. The Department of Justice filed an amicus brief in support of Walker’s argument that Georgia’s bail system is unconstitutional. Its main argument is that Georgia’s fixed bail schedule violates the Due Process and Equal Protection clauses . . . .”

Ending Cash-Register Justice, N.Y. Times, Oct. 17, 2017
“Toward the end of the Obama administration, the Justice Department called on judges to end the cash-register system of justice that had taken root across the country. In what is a clearly unconstitutional practice, people in localities nationwide were being sent to jail solely because they were too poor to pay the fines and fees that municipalities increasingly rely on for revenue. Some states heeded the advice, and progress was made. Now, a report from the United States Commission on Civil Rights shows what the Trump Justice Department needs to do to keep the momentum up for reform.”

Expanding Our Reach: Bronx Community Solutions’ Year in Bail Reform, Changing the Court, Mar. 1, 2017
“Today Bronx Community Solutions celebrates the one year anniversary of its Supervised Release program. Our Changing the Court blog will pay special tribute to this program over the next week with posts that highlight its imprint and give voice to those on the front lines of its implementation and impact. There are currently close to 10,000 inmates being held at Rikers, 75 percent of whom are awaiting trial and cannot afford their bail (In New York City, the misdemeanor median bail is $1,000 and $5,000 for felonies). Designed to reduce dependence on unnecessary jail time and costly monetary bail, Supervised Release allows lower-risk defendants to remain in their communities, jobs and families while awaiting trial. In addition to their court-required check-ins, all defendants in the program receive a thorough needs-assessment from BCS social workers and are referred to needed services such as vocational programs, housing or substance abuse treatment.”

Exposing the Bail Trap: New Film Campaign Urges Change for Bail System, ABA J., Apr. 1, 2017
“Educating the public and inspiring action to change the U.S. money bail system are among the goals of the Bail Trap: American Ransom film campaign. The multipart initiative is co-produced by Brave New Films and the Pretrial Justice Institute. “We don’t run a think tank, and we don’t do research papers,” says Robert Greenwald, founder and president of Brave New Films. “We tell human stories and hope that from the human story comes a better understanding of policy.” Brave New Films recently released the first short film in the campaign, Breaking Down Bail. Breaking Down Bail combines information about the bail system—such as the fact that about 500,000 people are in jail on any day, awaiting trial—with man-on-the-street interviews, highlighting the many misconceptions people have about the bail system. For example, some interviewees erroneously assumed bondsmen are public sector employees; one said the individuals work for themselves. The film also points out that insurers underwrite bail bondsmen.”

Fact Sheet on White House and Justice Department Convening–A Cycle of Incarceration: Prison, Debt and Bail Practices, Justice News, Dec. 3, 2015
“On Dec. 2, 2015, the Justice Department hosted a convening to address the effect and fairness of fees and fines. The department convened judges, academics and practitioners to develop a research and policy agenda that will inform jurisdictions in their efforts to reform court practices. On Dec. 3, the White House and the department co-sponsored an event called, “A Cycle of Incarceration: Prison, Debt and Bail Practices,” to bring public attention to the connection between poverty and the criminal justice system and highlight state reform efforts. The White House Council of Economic Advisers also released an issue brief exploring the economic inefficiency of fines, fees and bail and their disproportionate impact on the poor.”

Felony Defendants, Jailed for Months Without Lawyers, Ask New Orleans Judge for Their Release, Times-Picayune, Mar. 29, 2016; updated Apr. 16, 2017
“Seven criminal defendants, including armed robbery suspects, an alleged rapist and an accused murderer, asked a New Orleans judge to release them from custody Tuesday (March 29) because they have been jailed for months without legal representation, in violation of their constitutional rights. The petitioners appearing before Criminal District Court Judge Arthur Hunter were not summarily granted their freedom. But the judge scheduled a hearing for Thursday to receive a state response and determine whether the pleading has merit.”

Fighting Against Being Jailed Because of Poverty, Legal Aid Society in the News, Aug. 23, 2016
“Over the next two years, our client made every effort to maintain her restitution obligations. She had significant difficulties making payments on several occasions and fell behind, but each time managed to make up the arrears. She was able to pay back $9,705 before becoming disabled in 2014. Her disability forced her on leave without pay for over a year and caused her and her daughter to become homeless. Only through the compassion of their family and friends were they managed to avoid the shelter system. Even once she was finally able to physically return to the workforce, she earned less than $250 a week. This simply was not enough money to both make restitution payments and care for her daughter and herself. Despite remaining homeless and often penniless, our client stayed completely out of trouble while she struggled to get back on her feet. The Prosecutor, despite our clients hardships, recalendared the case and asked the Court to sentence our client to a six month jail/probation split. We argued that the client was unable, not unwilling to pay, and, under Bearden v. Georgia, 461 US 660 (1983) and People v. Amorosi, 96 NY2d 180 (2001), the Court must look for a punishment other than incarceration for an indigent person.”

For Poor, Bail System Can Be an Obstacle to Freedom, N.Y. Times, Jan. 10, 2011, at A15
“The common perception of how the bail-bond system operates is fairly straightforward: A bondsman bails a defendant out of jail. If that defendant misses a court appearance, the bondsman can “surrender” him — chase him down and haul him back to jail. The reality is more troubling. Vague laws and insufficient oversight have allowed some bondsmen in New York to return defendants to jail for questionable or unspecified reasons, and then withhold thousands of dollars to which they may not be entitled, according to lawyers, judges, state regulators and even some bondsmen.”

Foxx Agrees to Release of Inmates Unable to Post Bonds of Up to $1,000 Cash, Chicago Tribune, Mar. 1, 2017
“In another sign of growing political momentum for bail reform, Cook County prosecutors will no longer oppose the release of some detainees held on nonviolent offenses simply because they cannot afford to pay cash bonds of up to $1,000 at a time. The change was announced Wednesday by State’s Attorney Kim Foxx, who has been in office for three months. It was quickly praised by a top aide to Sheriff Tom Dart, who has focused on the issue over the last two years as part of an effort to reduce the county jail’s population.”

Get Out of Jail Free: U.S. Cities Eye Bail Reform, Other Efforts to Help Poor, Christian Science Monitor, July 31, 2015
“After a series of tragedies, cities are using a variety of tools – from eliminating bail for nonviolent offenses to pairing police officers with mental health professionals – to reduce overcrowding in America’s jails.”

Getting Rid of Bail Is Only the Start, N.Y. Times, June 1, 2017
“But bail reform alone cannot stanch the flow of people into the criminal justice system who shouldn’t be there in the first place. Over the past few years, city officials have congratulated themselves for ending the era of stop-and-frisk policing; last year there were just over 12,400 stops in New York, a sharp decline from a peak of more than 685,000 in 2011. But we seem to be nowhere near the point of upending the ways in which we criminalize personal dispute.”

Getting to 5,000: New Tracking App Helps Keep Tabs on the New York City Jail Population, Think Justice Blog (Vera Institute of Justice), Nov. 7, 2017
“On any given day, about 9,200 men and women are held in New York City’s jails. Most of them are housed on Rikers Island, which is notorious for its deplorable conditions and history of violence. The mayor, the city council, and the Independent Commission on New York City Criminal Justice and Incarceration Reform have recommended closing Rikers Island and replacing it with smaller jails in the city’s five boroughs. Everyone agrees that in order to do this, the city must reduce the jail population by nearly half—to 5,000. A key question for those planning the future of New York City’s jail system is this: “When will we get to 5,000?” Fortunately, we can keep tabs on the impact of reforms. The New York City Department of Correction’s publicly available Daily Inmates in Custody dataset allows users to track the city’s jail population in close to real time.”

Has Bail Reform in America Finally Reached a Tipping Point?, Christian Science Monitor, Apr. 3, 2017
“According to the Cook County Sheriff’s Office, of the more than 4,000 people sitting in Cook County Jail today more than 60 percent of those awaiting trial are there because they cannot afford to pay their bond. Nationwide, the United States Department of Justice estimates that 450,000 people are stuck in limbo every day, imprisoned before their day in court. Prison reform advocates argue that using bail to hold people before they go to trial perpetuates cycles of poverty, incarceration, and racial discrimination in the criminal justice system. Studies have found that black arrestees are assigned higher bail amounts than white arrestees with similar charges and criminal histories, and are more likely to remain in jail awaiting trial. Other research indicates that those who were detained before trial were three times as likely to be sentenced to prison than those who paid bail. They also were more likely to be arrested again at a later date.

Now, jurisdictions across the country seem to be taking this research to heart. In Illinois, lawmakers introduced in February legislation that would outlaw money bonds, and Cook County State’s Attorney Kim Foxx moved last month to release inmates with bonds of $1,000 or less who could not afford to pay them. Nationally, both New Jersey and Maryland have dramatically overhauled the way they use cash-based bail this year, and other states promise to follow suit. Facing lawsuits and tight budgets, states and local governments across the country have started to rethink the use of money to keep people in jail.”

Homeless Man Spent 854 Days in Jail for Mostly Minor Offenses, ABA J., Mar. 2, 2017
“A homeless man in New Hampshire has spent 854 days in jail for mostly minor offenses over a six-year period at a cost to taxpayers of about $63,000. A NPR reporter caught up with the 53-year-old man, Michael Treadwell, while researching how poor people are jailed for minor crimes when they can’t afford bail. Treadwell has mental health problems, and he drinks alcohol to cope, according to his ex-wife, Sherri Treadwell. Many of his crimes stem from a combination of being homeless and drunk, the article reports.”

Houston Judges to Use New Pretrial Release Program, Crime Report, Oct. 10, 2016
“Criminal justice reform advocates say U.S. bail systems unfairly keep low-income defendants, many of whom are minorities arrested for nonviolent crimes, in jail for too long, which not only leads to overcrowding but can affect the outcome of their cases. In Houston’s Harris County, the nation’s third most populous county, officials have launched a $5.3 million reform plan, including a $2 million grant from the MacArthur Foundation, the Associated Press reports. “Low-level, nonviolent offenders should not be rotting in jail waiting for a trial. That’s just wrong,” Harris County District Attorney Devon Anderson said.

How Bail ‘Criminalizes’ Poverty, Crime Report, Jan. 10, 2017
“It costs the city of New Orleans more to administer the system of bail than it raises in revenue from bail, fines and fees, the Vera Institute of Justice said in a report released today. The finding underlines the inefficiencies—and inequities—of the “user-funded” approach to funding the justice system in New Orleans and most other cities around the U.S., Vera said.”

How Harris County’s Federal Bail Lawsuit Spreads Beyond Houston, Texas Tribune, Oct. 2, 2017
“In April, U.S. District Judge Lee Rosenthal issued a groundbreaking ruling, calling Harris County’s bail practices unconstitutional and ordering the release of almost all misdemeanor defendants from jail within 24 hours of arrest, regardless of their ability to pay the bond amount. The county, which has implemented many of its own reforms since the suit’s filing, has appealed the injunction at the U.S. 5th Circuit Court of Appeals, where oral arguments will be heard in New Orleans on Tuesday. The ruling came down while the Texas Legislature worked — and ultimately failed — to pass bipartisan statewide reform for pretrial release practices. Some cities and states across the country have reformed their bail programs, either on their own or after court rulings, to move away from money bail bonds and release more defendants on personal recognizance bonds, where inmates are released with no money due up front.”

How the Bail Industry (Successfully) Flexes Its Political Muscles, The Crime Report, Dec. 27, 2016
“The pro-bail pressure comes as the nation – shaken by the consequences of mass incarceration and a fault-filled criminal justice system – is evaluating the basic fairness of a bail system that jails the poor before any proof of guilt for no other reason than the accused is indigent. Pending lawsuits on behalf of inmates in Cook County and around the country contend that it violates the Constitution to hold anyone in custody simply because he or she is too poor to post bail. The U.S. Justice Department even told prosecutors across the country that it opposes bail for the poor on constitutional grounds, and a bill was filed in Congress this year to end the system of cash bail.”

How We Can Make New York City’s Bail System Fairer Right Now, City & State New York, Sept. 27, 2017
“The question of why partially secured and unsecured bonds rarely if ever get used, even though they’re as valid a form of bail as cash, was the impetus for a new report by the Vera Institute of Justice, “Against the Odds: Experimenting with Alternative Forms of Bail in New York City’s Criminal Courts.” We [Insha Rahman] trained public defenders across the Bronx, Brooklyn, Manhattan, and Queens on how to request these forms of bail, and documented every case over the course of three months in which a judge imposed a partially secured or unsecured bond. We then tracked those cases and analyzed their outcomes: how many people made bail? How many returned to court? How many were rearrested during the pendency of their case? How were those cases resolved?”

Human Rights and Bail Reform – Disrupting the Criminal Courts, Human Rights at Home Blog, Aug. 31, 2017
“Bail in the US court system has resulted in human rights violations for thousands of defendants. Anyone who watched 60 Minutes this past week would have seen the impact of bail requirements on the hundreds of detainees at the Cook County Jail and the efforts of its warden to remedy a broken system. Nearly all of the detainees were men of color and at least half of whom were being held on non-violent offenses such as driving without a license, stealing small amounts of goods. The warehousing of men of color was evident. Bail has been used as a mechanism to ensure that those too poor to pay bail are further locked into poverty. U.S. courts have historically required bond (bail) for misdemeanor charges. Even the lowest of bail, sometimes $100.00, is beyond the financial ability of many defendants.”

“Humble Beginnings” of the Sweeping Bail Reforms Enacted by New Jersey, In Justice Today, Oct. 30, 2017
“New Jersey has become a national leader in criminal justice reform, particularly around the hot button issue of requiring cash bail. When it passed the Bail Reform and Speedy Trial Act last year, it became one of only three locations in the United States that have virtually eliminated bail as a condition for release when someone is charged with a crime. Yet the state literally stumbled into these efforts, almost by accident, in 2012.”

Immigration Judges Have to Consider Ability to Pay in Setting Bond, 9th Circuit Rules, ABA J., Oct. 3, 2017
“A federal appeals court has upheld an injunction requiring immigration judges to consider financial ability to pay and alternative conditions of release when setting bond. The San Francisco-based 9th U.S. Circuit Court of Appeals was the first to find that the government can’t set unreasonable bonds for detained immigrants, according to a press release by the American Civil Liberties Union. Before the ruling (PDF), immigration judges weren’t required to consider ability to pay.”

In Fight Over Bail’s Fairness, a Sheriff Joins the Critics, N.Y. Times, Mar. 9, 2017
“It was an awkward scene for officials of Harris County, Texas, who are defending themselves in federal court against a claim that they keep poor defendants locked up just because they cannot afford bail. On Wednesday a judge and the county sheriff testified for the other side. “When most of the people in my jail are there because they can’t afford to bond out, and when those people are disproportionately black and Hispanic, that’s not a rational system,” said Sheriff Ed Gonzalez, who was elected after the case was filed. Both the judge and the sheriff are defendants in the suit. Their defections were yet another sign of the growing skepticism over the fairness of the long-used system of money bail, especially when it is applied to those who cannot afford it. The class-action lawsuit contends that on any given night, several hundred people are in the Harris County jail on misdemeanor charges solely because they cannot make bail. If defendants with bail bond amounts of $500 or less had simply been released, the county would have saved $20 million over six years, according to a “very conservative” estimate by scholars at the University of Pennsylvania.”

Innocent at Rikers, Takepart, Sept. 23, 2016
“Hailey-Means’ and Giles’ stories resemble that of Kalief Browder, who in 2010 was arrested at 16 for allegedly stealing a backpack and incarcerated at Rikers for three years. Unable to afford the $3,500 bail set in his case, Browder was held in solitary confinement for two of the three years before his case was dismissed. The time in solitary was widely viewed to have contributed to the decline in Browder’s mental health that led to his suicide in 2015. Hailey-Means also couldn’t afford her bail and also spent two years in solitary confinement. She was found not guilty at trial. His bail set at $100,000, Giles spent two years and four months at Rikers before being acquitted with his alleged accomplices. No one else has been charged in the shooting.

According to the New York Criminal Justice Agency, more than 10,000 people incarcerated at Rikers between 2006 and 2010 were never convicted of a crime. Last year, about 1,500 people had been held at Rikers for more than a year without trial. Every year, 40,000 defendants are sent to New York City jails to await trial because they cannot post bail.”

Instantaneous Injustice of Bail, American Prospect Magazine, May 1, 2017
“For Chicago’s poor, who can’t afford attorneys, bail hearings often don’t last longer than a few seconds—and may keep them in jail for want of a few hundred dollars.”

Is Bail Causing Convictions?, The Atlantic, May 24, 2016
“Of the many surprising statistics about America’s money bail system, this one may be the most astounding: More than 60 percent of people in America’s overcrowded jails are there because they can’t afford to pay their bail amount. That works out to roughly 450,000 Americans in jail daily, and how long they stay there can vary with waiting times for trials potentially lasting months (or sometimes, years). The American money-bail system, which has been around since 1789, has ripple effect. Some reformers argue that poor defendants might plead guilty in order to be released. Others say that there are more effective alternatives to money bail, such as using a risk score or supervising defendants before trial. Concerns about the use of money in the bail system and the bail bond industry have also raised questions about America’s pretrial system and the way it affects the lives of unconvicted people.”

Is Bail Unconstitutional?, Slate, June 30, 2015
“For Karakatsanis, co-founder of the nonprofit civil rights organization Equal Justice Under Law, Dothan is just one pot on a big stove: Since January, he has filed class-action lawsuits against four other small cities with bail schemes that don’t take into account people’s ability to pay, and he plans to file more. The suits are the opening moves of an ambitious campaign to abolish, on a national level, the practice of demanding secured money bail (i.e., cash) from pre-trial detainees as a condition of release. Taken together, they represent the first major effort since the dawn of the mass incarceration era in the 1980s to use the legal system to force reform in this area.” See also Court by Court, Lawyers Fight Policies That Fall Heavily on the Poor, N.Y. Times, Oct. 25, 2015, at A17

Jailing the Poor and Releasing the Rich, U.S. News & World Report, Oct. 19, 2016
“As Robert F. Kennedy said 50 years ago, “Only one factor determines whether a defendant stays in jail before he comes to trial. That factor is not guilt or innocence. It is not the nature of the crime. It is not the character of the defendant. That factor is, simply, money.” In response, President Lyndon B. Johnson signed the Bail Reform Act, which all but ended bail in federal criminal cases. Johnson called money bail “archaic and unjust.” Yet half a century later, not much has changed in the states, as Ferguson’s experience shows. A few jurisdictions have made some reforms – but it’s time for legislatures to abolish money bail altogether.”

Judge Explains How to Change America’s Twisted Bail System, Vice, May 24, 2016
“It is in cities’ criminal courts where bail gets assessed, and assigned, often landing poor, innocent people behind bars—sometimes for days, sometimes for weeks, months or even years—when they’re unable to fork up as little as $20. The result can be traumatizing and destructive, as in the case of Bronx native Kalief Browder, who committed suicide not long after spending three years in NYC’s hellish Rikers Island jail (his family couldn’t pay bail when he was accused of stealing a backpack). In response to outrage at the damage money bail can inflict on (often innocent) people, the New York City Council last year created a fund to help people facing bails under $2,000. Earlier this month, officials announced ATMs were being installed at local courthouses to make the process of shelling out bail money slightly less of a nightmare.

But what about changing the system more fundamentally? Some American locales like Washington, DC, have abandoned money bail entirely, though that idea hasn’t gained a ton of traction nationwide. When it comes to the question of money bail in New York, a task force was convened in the summer of 2014 to explore alternatives. Alongside court experts, public defenders, and fellow magistrates, Judge Grasso was one of the task-force chairs, and in his chambers on the ninth floor of the Bronx Hall of Justice, he broke down how bail is changing in America’s largest city.”

Judge in Houston Strikes Down Harris County’s Bail System, N.Y. Times, Apr. 29, 2017
“A federal judge in Houston has overturned the county’s bail system for people charged with low-level crimes after finding that it disproportionately affected indigent residents and violated the Constitution. The judge, Lee H. Rosenthal of Federal District Court, ordered Harris County to stop keeping people who have been arrested on misdemeanor charges in jail because they cannot pay bail. The ruling, part of a civil rights lawsuit against the county, came Friday in a case that began when a woman was arrested on a charge of driving without a license and spent more than two days in jail because she could not post $2,500 in bail. Judge Rosenthal wrote in the ruling, “Harris County’s policy is to detain indigent misdemeanor defendants before trial, violating equal protection rights against wealth-based discrimination and violating due process protections against pretrial detention.” She cited statistics showing that 40 percent of people arrested on misdemeanor charges in the county had been detained until their cases were resolved.”

Judges Are Doing It for Themselves, Pretrial Just. Inst. Blog, Sept. 19, 2017
“Earlier this month, an Alabama judge signed an administrative order that effectively eliminated the use of secured bail in his county. Presiding Circuit Judge Jerry Selman’s order also requires Walker County courts to conduct initial appearance and indigency hearings within forty-eight hours of arrest. Judge Selman’s order demonstrates two key ways that jurisdictions are moving to improve their pretrial justice practices.”

Justice Delayed: 10 Years in Jail, but Still Awaiting Trial, N.Y. Times, Sept. 19, 2017
“Kharon Davis was 22 when he was charged with capital murder and booked into the county jail. Ten years later, he is still there, awaiting trial. He has had two judges, four teams of lawyers and nine trial dates, the first of which was in 2008. His case has outlasted a district attorney who served for nearly three decades. It defies any common understanding of the right to a speedy trial. As the case has languished, Mr. Davis, whose only prior offense was driving without a license, has been segregated from the jail’s general population for minor transgressions like unauthorized peanut-butter-and-jelly sandwiches, and a couple of more serious ones, like fighting. His mother, Chrycynthia Davis, says she has been allowed to visit him just once in the last three years. Though he has not been found guilty, Mr. Davis has already served half of the minimum sentence for murder. The case, State of Alabama v. Kharon Torchec Davis, underscores how the country’s justice system can flounder at many levels, especially for poor defendants. And it exposes the loopholes in the constitutional protections that are supposed to ensure that both the victims and the accused receive timely justice.”

Justice Reform Advocates Offer a Roadmap for Reforming Pretrial Release, ABA J., Aug. 5, 2016
“[Alec] Karakatsanis [co-founder of the small nonprofit Equal Justice Under Law] told that story Friday morning at “Pretrial Justice: Maximizing Due Process and Public Safety,” an event organized by the ABA’s Criminal Justice Section as part of the ABA Annual Meeting in San Francisco. He and one of his pretrial committee co-chairs, Cherise Fanno Burdeen of the Pretrial Justice Institute, spoke about the importance of reforming financial bail as a way to treat prisoners with more humanity, improve public safety and save public money.”

Kalief Browder’s Tragic Death and the Criminal Injustice of Our Bail System, ACLU Blog, Mar. 15, 2017
“Over the last two weeks, Americans have revisited the tragic details of the death of 22-year-old Kalief Browder. The documentary series “Time: The Kalief Browder Story,” airs its third of six episodes tonight about Kalief, who spent three years in jail without ever being convicted of the crime with which he was charged. Kalief’s story matters. It matters for his family. It matters for his community. It matters for New York. It matters for our entire nation.”

Kamala Harris and Rand Paul: To Shrink Jails, Let’s Reform Bail, N.Y. Times, July 20, 2017
“Our bail system is broken. And it’s time to fix it. That’s why we’re introducing the Pretrial Integrity and Safety Act to encourage states to reform or replace the bail system. This should not be a partisan issue.”

Legal Aid Highlights Success of Alternate Bail Forms, Issues Related to Prosecuting Violence in City Jails, In the News (Legal Aid Society), Jan. 17, 2017
“As New York City lawmakers consider legislation meant to encourage greater use of unsecured and partially secured bonds during bail, The Legal Aid Society emphasized how these less restrictive forms of bail have been successful in ensuring clients’ return to court. Though judges in New York City regularly set bail through cash or an insurance company bond, the state’s bail laws also allow for judges to set bail in other ways – such as through an unsecured bond, where an individual promises to pay if not appearing at a later date, or a partially secured bond, where a portion of the amount is paid. In testimony Tuesday, Joshua Norkin, a Staff Attorney in the Criminal Defense Practice’s Special Litigation Unit, said very few clients were released on these forms of bail – yet when they were, the outcomes tended to be very successful. Norkin noted how one of his clients made bail on a partially secured bond. The client was eventually acquitted, said Norkin, who oversees the Society’s Decarceration Project, which is focused on reducing and ending unnecessary pre-trial incarceration.” See Testimony on Bail 2017; Testimony Bronx DA Office.

Local Jail Fees Face Legal Challenges in Court, Christian Science Monitor, Dec. 27, 2016
“A Minnesota county has come under fire for its practice of making every arrestee pay a $25 fee regardless of whether he or she is ultimately charged with, or convicted of, a crime. The Supreme Court will soon decide whether to hear a challenge to the “booking fees” in Ramsey County, Minn., from two men who were made to pay $25 at the time of their arrest. Corey Statham and Erik Mickelson each had their respective charges of disorderly conduct and noise ordinance violation dismissed shortly after they were jailed – but, like all arrestees in Ramsey County, their $25 was not automatically returned to them upon their release. The booking charge in Ramsey County is one of many similar fees and fines that have come under fire in recent years as underfunded state and local judicial systems look for new ways to bring in much-needed revenue. Under some systems, there is no way to reclaim the money lost, even when an arrestee has his charges dismissed, or is never charged at all. In other places, such as Ramsey County, it is possible to get back one’s money – but, opponents of these fees argue, many innocent arrestees don’t have the time, know-how, or courage to do so, creating a system that critics say disproportionately punishes the poor.”

Locked Up for Being Poor, N.Y. Times, May 5, 2017
“Maranda Lynn O’Donnell, a 22-year-old single mother in Harris County, Tex., was arrested last year for driving without a valid license. The judge set her bail at $2,500. She couldn’t afford anything close to that, so she spent three days in jail — even though she posed no risk of skipping town or endangering anyone if she were released. “In our society,” the Supreme Court has held, “liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” Yet across America, poor people like Ms. O’Donnell are held in jail for days, weeks or even months solely because they don’t have the cash to bail themselves out. All of them are presumed innocent under the law, and many may in fact be innocent, yet most plead guilty just to get out (usually with a sentence of time served). It’s a repulsive practice, and last week, in a case that could have national implications for bail reform, a Federal District Court judge in Houston ruled that it was also unconstitutional. In a 193-page ruling that followed a lengthy trial, the judge, Lee Rosenthal, said that money bail should be used for people charged with misdemeanors “only in the narrowest of cases,” and even then only when there are strong safeguards in place to ensure that defendants receive due process before being locked up.”

Locked Up: Is Cash Bail on the Way Out?, Stateline, Mar. 1, 2017
“Increasingly, state policymakers are looking at defendants like Mayes and reexamining the purpose of bail. Six in 10 adults in U.S. jails have not been convicted of a crime. They are locked up awaiting trial, mostly because they’re too poor to post bail. They are legally presumed innocent, but many spend months and even years awaiting trial. Often, they feel pressure to take a plea deal rather than spend more time in jail. And policymakers are proposing changes. In Illinois, lawmakers last month introduced proposals that could eliminate bail for first-time, nonviolent offenders or abolish cash bail. In Maryland, the Supreme Court last month chose to change the state’s cash bail system significantly. In January, New Jersey began a new system of pretrial detention, in which judges can only set bail as a last resort. Lawmakers in California, Connecticut, Maryland and New York also have legislation pending that would remake their states’ cash bail systems. And last week, a federal appeals court heard arguments in a class-action suit that challenges the constitutionality of the bail system. It involves an indigent Georgia man who was arrested for walking on the road while drunk; his bail was set at $160. Behind many of the proposals is a growing recognition that cash bail is inequitable and isn’t effective in assuring the people who are accused actually go to court to answer the charges, said Eric Sterling, executive director of the Criminal Justice Policy Foundation, a nonprofit that advocates for changes in the criminal justice system.”

Louisiana Can’t Afford to Pay for Public Defenders, So Inmates Are Pleading Guilty, Daily Beast, May 12, 2017
“Carter’s story is all too familiar in Louisiana, where 85 percent of people accused of a crime are poor. Black people are jailed at a rate four times that of white people (PDF). Paying for their defense is a system funded primarily through fines and fees instead of tax dollars. Louisiana is the only state that funds its public defenders this way, and with 250,000 annual cases, the system has collapsed. The median amount spent on public defense per case was just $238 in 2016 (PDF). The crunch is so severe that three-quarters of public defender districts quit accepting certain new clients last year. So a small coalition of lawyers started plotting a response. On Feb. 6, after nearly a year of research and planning, the legal team, an unlikely union comprised of civil rights attorneys and an elite New York corporate firm, filed a class action lawsuit on behalf of Carter and 12 other inmates against a slew of state actors. Just last week, the team submitted a motion to certify the class. If the motion is granted, the lawsuit will be the largest of its kind ever.”

Man’s Bail Goes from $1,500 to $350,000 — How Judges Differ on What’s Reasonable, Milwaukee Journal Sentinel, Oct. 13, 2017
“A Brown Deer business owner who had been free on $1,500 bail since he was charged in May with sexually assaulting a passenger of his medical transport service found himself in jail this week when a judge suddenly increased the bail to $350,000, an amount his attorney called excessive and challenged on Friday. The case provides one of the sharpest examples of a frequent conflict between a policy of reducing the number of people in jail awaiting trial and some judges’ more historic views about the function of bail.”

Maryland Top Court: Defendants Cannot Be Held Before Trial If Unable To Afford Bail, Paper Chase (Jurist), Feb. 8, 2017
“The Maryland Court of Appeals [official website] adopted a rule [press release] on Tuesday ending the practice of holding criminal defendants in jail before trial when they cannot afford bail. The rule does not abolish the practice of required money for bail [Baltimore Sun report] but instructs judges to seek other ways of ensuring a defendant appears for trial. The rule keeps the option of money bail but provides judicial discretion to find other options when appropriate. It was argued that keeping defendants in jail solely because they could not afford bail is unconstitutional and that if there is a concern of public safety, then it is better to hold defendants without bond rather than placing a high bail amount in order to keep them behind bars. Some other options besides setting a bail amount are pretrial supervision and electronic monitoring. The new rule will take effect July 1.”

Minor Judiciary: Bail decisions Vary from Judge to Judge, Sentinel, Aug. 25, 2017
“Initial bail decisions in Pennsylvania are usually made by magisterial district judges, who are given wide discretion in determining the type and amount of bail, as well as setting conditions of release. For defendants, this means whether they go home or sit behind bars can be a matter of where they’re arrested and which judge is setting bail. In 2016, the average defendant in Cumberland County with monetary bail imposed was expected to pay $10,000 to remain out of jail, according to an analysis of court records conducted by The Sentinel. However, the average defendant in neighboring Franklin County last year was expected to pay three times that, according to court records. For defendants charged with possession with intent to deliver controlled substances, the difference between the two counties was even greater.”

Mississippi Woman Jailed 96 Days Without Attorney Has Fifth Circuit on Her Side, In Justice Today, Nov. 2, 2017
“The Fifth Circuit Court of Appeals, arguably the most conservative court in the country, has ruled in favor of a woman detained in a Mississippi jail for 96 days awaiting trial and “effectively denied bail.” Last week, it overturned a lower court’s decision that holding the woman in jail was “constitutionally permissible.””

Money Bail System Challenged in Jacksonville, Florida, In Justice Today, Oct. 4, 2017
“Two prominent Jacksonville civil rights attorneys are challenging bail practices for misdemeanor charges in Northeast Florida’s 4th Judicial Circuit. Attorneys William Sheppard and Elizabeth White argue that current practices unfairly punish those unable to afford bail. The lawsuit maintains that judges in the 4th Judicial Circuit, which consists of Duval, Clay and Nassau counties, don’t inquire as to whether defendants can post bail. Instead, as the complaint alleges, “[t]he amount of money required is determined by a generic offense-based bail schedule or a policy and practice of Jacksonville officials imposing money bail amounts without considering the person’s ability to pay.” . . . Bail reform has become a priority of criminal justice advocates nationwide. Similar lawsuits challenging bail procedures have been filed in Harris County, Texas, San Francisco, California, and Calhoun, Georgia. Newly elected District Attorneys in major cities, including Houston and Chicago, have moved quickly to change bail practices there. The Democratic nominee for district attorney in Philadelphia, Larry Krasner, has made it a key campaign issue. Political leaders of both parties are also starting to embrace bail reform. This past year, with the support of the Governor and the Attorney General, New Jersey enacted broad reforms to the way in which bail is set, with the goal of eliminating the large economic disparities between those who are detained pre-trial and those who are released. In July, Kentucky Senator Rand Paul, a Republican, and California Senator Kamala Harris, a Democrat, introduced legislation designed to encourage states to eliminate cash bail systems.”

Montgomery Judge Suspended for Jailing People Who Couldn’t Afford Fines, AL.com, Jan. 5, 2017
“The presiding judge of Montgomery’s municipal court on Thursday was suspended without pay for 11 months after agreeing that he had violated canons of judicial ethics regarding the jailing of poor people who couldn’t pay fines. Judge Armstead Lester Hayes III was suspended under an agreement he reached with the Alabama Judicial Inquiry Commission (JIC). He will get credit for the amount of time he has already served under suspension since the original charges were brought in November. His suspension ends Oct. 1.” See also Judge Suspended for Jailing Indigent Defendants Over Traffic Tickets Is Hired By City Law Department, ABA J., Jan. 27, 2017; Court Collection Company JCS Flees State, Montgomery Advertiser, Oct. 20, 2015.

Much Agreement on Need for Bail Reform, but Little Movement, Gotham Gazette, Dec. 9, 2016
“There is an ongoing conversation in New York about how to fix the bail system that many agree is broken, keeping too many poor people in jail after they are arrested for low-level nonviolent offenses but cannot afford to post bond and, at times, allowing individuals back onto the street who are prone to violence but able to pay bail. Efforts at reform have been full of fits and starts.”

National Panel Advises Judges on People Who Can’t Pay Court Fees, NPR, Feb. 3, 2017
“When NPR in 2014 ran a series about how people around the country end up in debtors’ prisons when they don’t have the money to pay court fines and fees — even on minor infractions like traffic tickets — one cause of the problem, the stories noted, was confusion among state judges. Many didn’t know that, in 1983, the U.S. Supreme Court had ruled against the practice. Or judges had no set standard for determining who was too poor to pay court fines and fees that typically run hundreds or thousands of dollars. Some judges told impoverished people to pay with their veterans or welfare benefits, or told them to get money from a relative. One man in the NPR series was homeless and got caught in Georgia stealing a can of beer worth less than two dollars, but ended up being sentenced to a year in jail when he couldn’t pay fines and costs that ran more than $400 a month. Now the nation’s top state judges have taken a big step to end the practice of sending impoverished people to debtors’ prisons. The National Task Force on Fines, Fees and Bail Practices on Friday issued a “bench card” — a clear set of instructions — to be used by state judges across the country. The two-page set of guidelines, which judges can keep at their fingertips on the bench, tell judges that they’re only allowed to send people to jail for non-payment when they have the means to pay, but “willfully” refuse to pay. The instructions spell out how to determine who falls below the poverty line, and how to come up with alternative sanctions, like reducing a fine, extending the time to pay it, or requiring community service, instead.”

New Data Throws Fuel on the Fire for Nashville Bail Reform, In Justice Today, Oct. 27, 2017
“Talk of bail reform in Nashville is getting an assist from recently released data showing that the majority of individuals arrested for misdemeanors remain in jail until their cases are concluded. According to News Channel 5, about 21,000 people were charged with misdemeanors last year in Nashville, but only 8,565, or approximately 40%, were released on bail. The new statistics add momentum to the ongoing push for bail reform in the city. As In Justice Today previously reported, the American Civil Liberties Union of Tennessee and the Civil Rights Corps are calling for an end to money bail in Nashville.”

New Jersey Alters Its Bail System and Upends Legal Landscape, N.Y. Times, Feb. 6, 2017
“[U]nder an overhaul of New Jersey’s bail system, which went into effect Jan. 1, judges are now considering defendants’ flight risk and threat to public safety in deciding whether to detain them while they await trial. Otherwise, they are to be released, usually with certain conditions.”

New Jersey Bail-Reform Law Ducks Challenge, Courthouse News, Sept. 25, 2017
“Unhappy with New Jersey’s bail-reform scheme for different reasons, a bail-bond business and accused barroom brawler under house arrest failed to demonstrate that they are likely to prevail on their constitutional challenge. . . . Refusing to enjoin the law Thursday, however, U.S. District Judge Jerome Simandle found neither party showed a likelihood of success on the merits.”

New Jersey Bails Out, NPR, July 12, 2017
“Bail has been around for centuries. It’s supposed to protect the rights of defendants like Mustafa who haven’t been convicted of anything yet. At the same time, bail gives courts an extra guarantee that people are going to show up for their trials. But can a system built on money ever be fair to the poor? In New Jersey, defense attorneys, judges, and prosecutors got together to try to reform a system that treated poor defendants so differently from rich ones. In the end: they got rid of bail. Then they had to figure out how to replace it.”

New Jersey Is Front Line in a National Battle Over Bail, N.Y. Times, Aug. 21, 2017
“Less than a year after New Jersey established a sweeping new law that all but eliminated cash bail, the state has found itself facing a challenge familiar to others that have overhauled their bail systems: an energetic legal attack from the bail industry. In June and July, two lawsuits were filed in Federal District Court in New Jersey challenging the statute, the Criminal Justice Reform Act, which took effect on Jan. 1. While the suits have taken different legal tacks, they do have something in common: one was filed by a large corporate bail underwriter and the other has received support and publicity from professional bail agents. Both parts of the bail industry have said that their profits have plummeted since the law took effect. New Jersey is among a handful of states where courts and government officials have begun in recent years to modernize — and in some cases, abolish — the assignment of cash bail, which critics say discriminates against defendants, many of them black and Latino, who cannot afford to pay. The New Jersey law, which was designed to keep the poor from languishing in jail — especially for minor offenses — has put the state at the forefront of a growing national movement toward major change and was notable for having the support of its Republican governor, Chris Christie.”

New Jersey Overhauls Its Bail System, Pace Criminal Justice Blog, Feb. 14, 2017
“Effective January 1, 2017, New Jersey began implementing its newly revised bail system (P.L. 2014, Ch. 31 known as the “Bail Reform Law”). As judges do under the Federal Bail Reform Act, New Jersey judges will now focus on whether an accused presents a significant flight risk, is threat to public safety, or both when deciding whether to detain the accused while awaiting trial.”

New Mexico Supreme Court Sued Over Pre-Trial Detention Rules, U.S. News & World Report, July 28, 2017
“The New Mexico Supreme Court is being sued over its recently issued pre-trial detention rules that allow defendants to be held without chance of bond. The Albuquerque Journal (http://bit.ly/2v7VtCG) reports that a group that includes five state legislators and the Bail Bonds Association of New Mexico filed the lawsuit Friday. The suit seeks injunctive relief and damages plus a preliminary injunction to block the Supreme Court rules pending outcome of the litigation. According to the lawsuit, the state’s high court has restricted “the liberty of presumptively innocent defendants without offering the one alternative to substantial pre-trial deprivations that the Constitution expressly protects — monetary bail.””

New Orleans’ Great Bail Reform Experiment, CityLab, Oct. 19, 2017
“Courts across the country are starting to face legal and legislative challenges to their bail systems. And New Orleans has become a key battleground, as lawmakers try to shake its legacy as “the most incarcerated city in the most incarcerated state in the world.” The bail bonds industry has argued that financial collateral is the only effective way to ensure defendants return to court for their trial. Starting in the spring, the Orleans Parish criminal district court decided to test this theory with a pilot program that came close to approximating what it would be like if the court eliminated bail altogether. It used a risk assessment tool to identify who was most likely to return to court without incident—and then it released them without making them pay. The result? People released in the pilot returned to court at roughly the same rate as defendants in other commissioners’ courtrooms, according to a new report by the civilian court monitoring group Court Watch Nola. The rearrest rate was also comparable, although somewhat higher, at 4.5% rather than 2.9%. In all, 9 people out of 201 people in the program were arrested again after they were released without bail. The findings help debunk warnings by opponents that replacing money bail will release dangerous criminals into the streets and allow fugitives to flee from justice.”

New Orleans Judge Orders Inmates’ Release Amid Public Defense Crisis, Guardian, Apr. 8, 2016
“A judge in New Orleans on Friday ordered that seven prisoners charged with crimes ranging from murder to aggravated rape be released from jail because there isn’t adequate funding for their legal representation, the most drastic sign of a growing public defense crisis in the city and throughout Louisiana.”

New PJI Report Answers Questions About Pretrial Assessment, PJI Blog, Oct. 4, 2017
“The Pretrial Justice Institute (PJI) has released today a new report titled Questions about Pretrial Assessment. As the title indicates, the report seeks to eliminate confusion and resolve common misconceptions about objective, actuarial assessment tools that help courts make better release and supervision decisions for people charged with committing a crime. In the process, the report also introduces a new, more accurate way of speaking and thinking about pretrial decision-making tools and outcomes.”

New York: Charges Dropped for Pedro Hernandez, Held Over 1 Year at Rikers, Democracy Now!, Sept. 7, 2017
“In New York City, a Bronx prosecutor dropped charges against Pedro Hernandez Wednesday, after the 18-year-old was imprisoned for more than a year in the notorious Rikers Island jail awaiting trial for a crime he says he did not commit. Hernandez’s plight has drawn comparisons to the case of Kalief Browder, another Bronx teen, who committed suicide at the age of 22 after being held at Rikers for nearly three years without trial for a crime he did not commit.”

New York City to Relax Bail Requirements for Low-Level Offenders, N.Y. Times, July 9, 2015, A21
“New York City officials announced a plan on Wednesday to change bail requirements for some low-level offenders in an effort to keep thousands of people accused of nonviolent crimes and misdemeanors out of the troubled Rikers Island jail complex. The program, which is expected to cost nearly $18 million, will allow judges to release up to 3,000 low-risk defendants while placing them under court supervision as they await trial. Supporters of the program hope the initiative will help defendants who otherwise would remain jailed because they cannot afford bail.”

New York Gets Middling Marks in New National Pretrial Detention Survey, N.Y.L.J., Nov. 1, 2017
“New York barely squeaked by with a passing grade in an inaugural survey of pretrial services across the country. The report, “The State of Pretrial Justice in America,” is an attempt by the Pretrial Justice Institute to chart and track the progress of pretrial improvement efforts year-over-year, according to Cherise Fanno Burdeen, the institute’s CEO. A “C” may not be a sterling rating, but Burdeen said it was a mark above the “dismal” national average of “D.” Burdeen noted that pretrial detention remains where most people who are locked up are serving time, and that the vast majority of those people are in on misdemeanors and will be sentenced to time served or probation. “Most people are being held in jail because they’re too poor to post a money bond,” she said. “These are not rapist, murderers and arsonists. These are people charged with low-level, nonviolent, non-person for the most part misdemeanor charges.””

‘Nightmare’ Directive From SC’s Chief Justice Has Courts, Cops Scrambling, WIS10, Nov. 6, 2017
“A memo from South Carolina Supreme Court Chief Justice Donald Beatty has forced judges, attorneys, and law enforcement to re-examine how they handle cases in lower level courtrooms. The directive issued by Beatty on Sept. 15 takes aim at proceedings in summary courts. Beatty’s message points to constitutional rights violations for defendants he says are being jailed before they have access to legal counsel:

“It has continually come to my attention that defendants, who are neither represented by counsel nor have waived counsel, are being sentenced to imprisonment. This is a clear violation of the Sixth Amendment right to counsel and numerous opinions of the Supreme Court of the United States. All defendants facing criminal charges in your courts that carry the possibility of imprisonment must be informed of their right to counsel and, if indigent, their right to court-appointed counsel prior to proceeding with the trial. Absent a waiver of counsel, or the appointment of counsel for an indigent defendant, summary court judges shall not impose a sentence of jail time and are limited to imposing a sentence of a fine only for those defendants, if convicted. When imposing a fine, consideration should be given to a defendant’s ability to pay. If a fine is imposed, an unrepresented defendant should be advised of the amount of the fine and when the fine must be paid. This directive would also apply to those defendants who fail to appear at trial and are tried in their absence.”” See also Constitutional Violations in South Carolina (NACDL).

No Live Witness Guarantee at Bail Hearings, High Court Says, N.J.L.J., Aug. 1, 2017
“Criminal defendants in New Jersey facing pretrial detention under the state’s new bail system do not have an automatic right to confront witnesses at their hearings, the state Supreme Court ruled on Tuesday. In a unanimous ruling, the court said a prosecutor’s proffer of a witness’s testimony will generally suffice if pretrial detention is being sought, although the justices took care to point out that a judge retains the discretion to require live testimony from a witness if he or she is dissatisfied with the state’s proffer.”

No Shackles for Pretrial Detainees in Court, 9th Circuit Says, Courthouse News, June 1, 2017
“By a single vote Wednesday, the en banc Ninth Circuit ruled that the Southern District of California’s policy of shackling pretrial detainees unconstitutionally violates defendants’ right to be treated “with respect and dignity in a public courtroom, not like a bear on a chain.” The 6-5 ruling by Ninth Circuit Judge Alex Kosinski says the policy clashes with the right of a “presumptively innocent defendant” to be treated with respect in a public courtroom.”

No-Show Cops and Dysfunctional Courts Keep Cook County Jail Inmates Waiting Years for a Trial, Chicago Reader, Nov. 16, 2016
“Now, a joint investigation by the Reader and the Investigative Fund at the Nation Institute has found that although Cook County Jail has fewer inmates than Rikers did then—roughly 8,000—it holds more than double the number of inmates awaiting trial for multiple years. More than 1,000 Cook County inmates have been awaiting trial for more than two years, according to the Cook County sheriff’s department. In some extreme cases, some have been held without trial for more than eight years. Minorities account for 93 percent of these long-waiting inmates, an even higher percentage than the jail’s overall population. Only 11.5 percent of Cook County inmates are white, as are a mere 7 percent of its long-term pretrial detainees. (The racial breakdown of the jail’s population is already strikingly disproportionate to the county’s population as a whole, which is 42.6 percent white.)”

NYC Reaches Settlement with Woman Jailed for 4 Years Before Murder Charge Was Dropped, N.Y.L.J., Jan. 11, 2017
“New York City has reached a $4 million settlement in a protracted false imprisonment and malicious prosecution case brought by a woman jailed for four years on a murder charge that ultimately was dropped. David Perecman of the Perecman Firm in Manhattan said he agreed to the settlement Tuesday on behalf of Maria De Lourdes Torres. A trial in the two related civil claims brought by the woman against New York City, Torres v. Jones, 24709/07and 1590/10, was set to begin on Jan. 23 in state Supreme Court in Queens. The case was litigated for more than a decade.”

NYCLU Statement on New State Regulations for Solitary in Local Jails, ACLU News, Oct. 18, 2017
“Governor Cuomo yesterday announced that the State Commission of Correction will issue new regulations to increase transparency about the use of solitary confinement in local jails. The regulations will require individuals spend no more than 20 hours in solitary confinement or 19 if they are under 18 or pregnant, unless the jail administrator issues a written exemption, reporting when anyone who is pregnant or under the age of 18 is placed in solitary, reporting when anyone is placed into solitary confinement for more than 30 days, and reporting of any restrictions or denials of essential services to individuals in solitary confinement.”

Penn Studies: Defendants Who Can’t Make Bail Are Likelier to Be Jailed Now and in the Future, Philly.com, Aug. 26, 2016
“Criminal defendants who cannot make cash bail are far more likely to be convicted than similarly situated suspects who receive pretrial release, say two new University of Pennsylvania studies. The work suggests that the inability to pay bail traps many of the accused in a cycle of criminal conduct. The studies, covering hundreds of thousands of criminal cases in Philadelphia and the Houston area, found that defendants who were unable to make bail were far more likely to plead guilty than those who had been released, after adjusting for differences in judges, defendants’ circumstances and other factors. The studies were conducted by researchers at Penn’s Quattrone Center for the Fair Administration of Justice, which focuses on reducing errors in the justice system.”

Philadelphia Is Looking to Skip Bail, Philly Voice, Aug. 12, 2016
“Next year, the state of New Jersey will implement bail reforms. New York City has recently implemented bail reforms intended to reduce the number of people in prison for minor offenses, and Chicago is adopting a new system that would allow those accused of committing non-violent crimes to be released if their cases take more than 30 days to get to trial. Some are looking to learn from Washington, D.C., a city that hasn’t required bail in more than two decades. Including Philadelphia, which was awarded a $3.5 million grant recently from the MacArthur Foundation to find ways to cut its inmate population by 34 percent over the next three years.”

Plea Factories’ Gum Up Public Defender System, Kansas City Star, Oct. 30, 2017
“Instead of preliminary hearing dockets, we have those “plea factories,” where indigent defendants were forced to plead guilty (ironically, usually to probation) just to end their incarceration. This is ironic because the same defendants on which the prosecutor opposes a signature bond are often offered probation in exchange for a guilty plea. Using the jail to “encourage” pleas was one of the main reasons that the federal court imposed a population cap back in the 1990s. Of course, it would help if all judges followed the law on bail (Sec. 544.455) which requires release on personal recognizance unless a judge has reason to believe that a defendant will not appear in court, at which point some other limits can be required. The purpose of the law was to make granting a recognizance (signature) bond an automatic, default position.”

Poor People Fight Money Bail in San Francisco, Courthouse News, Oct. 29, 2015
“The city and county of San Francisco is unconstitutionally criminalizing poverty by keeping poor arrestees in jail because they can’t afford to post bail, a federal class action claims. “Nobody should be detained because they’re too poor to pay an arbitrary amount of money,” Phil Telfeyan of the Washington, D.C.-based Equal Justice Under the Law told reporters Thursday. “A very, very dangerous criminal might be released if they can post $100,000 bond, whereas a completely nonviolent detainee might be in jail for months pending trial simply because she’s too poor to pay that bond amount.””

Post Bail, NBC News, Aug. 22, 2017
“The bail system, enshrined in the Bill of Rights, is meant to ensure that all defendants, presumed innocent before trial, get a shot at freedom and return to court. But allowing people to pay for their release has proved unfair to people who don’t have much money. The poor are far more likely to get stuck in jail, which makes them far more likely to get fired from jobs, lose custody of children, plead guilty to something they didn’t do, serve time in prison and suffer the lifelong consequences of a criminal conviction. Those who borrow from a bail bondsman often fall into crippling debt. At the same time, the wealthy can buy their way out of pretrial detention on just about any offense, including murder. The bald inequity of this system has triggered a national movement to eliminate bail altogether.”

Poverty Is Not a Crime, So Why Are People Being Trapped in Immigration Detention for Being Poor?, ACLU, Sept. 21, 2016
“You shouldn’t be imprisoned for being poor. But that’s what’s happening to thousands of immigrants across the country who are unable to afford to pay a bond to be released from immigration detention. People accused of immigration violations — who have no criminal record whatsoever — can be assigned exorbitantly high bail that leaves them trapped in detention for years. Today, members of Congress introduced legislation to prevent immigration detainees from being overcharged for bail. The Immigration Courts Bail Reform Act, co-sponsored by Reps. Jose Serrano (D-N.Y.), Luis Gutierrez (D-Ill.), Zoe Lofgren (D-Calif.), John Conyers (D-Mich.), and 25 other lawmakers, is critical to ensure that no immigrant — whether a legal resident, asylum seeker, or undocumented person — is imprisoned solely because he or she can’t afford to get out.”

Pressure Mounts Against Bail System in Houston, Courthouse News, Mar. 7, 2017
“The CEO, district attorney and sheriff of Harris County, Texas, all agree its bail system needs to be reformed, siding with a federal class action that’s pushing to keep poor people accused of petty crimes out of its jail. Harris County DA Kim Ogg, a Democrat, took office in January following a campaign in which she promised to focus tax dollars on prosecuting violent criminals instead of low-level offenders, especially marijuana possession cases. Early this month, she rolled out at a diversion program in which people caught with less than four ounces of marijuana can take a four-hour drug education class to avoid being charged. She estimates the program will keep 10,000 people annually out of Harris County Jail, which has been plagued in recent years by overcrowding that critics say is partly to blame for the deaths of 55 people in pretrial custody from 2009 to 2015.”

Pretrial Integrity and Safety Act: Another Step Toward Justice, Pretrial Justice Institute Blog, July 26, 2017
“Last week, U.S. Senators Kamala Harris and Rand Paul introduced SB 1539, the Pretrial Integrity and Safety Act of 2017, which encourages states to move away from money bond and ensure they are using legal and evidence-based pretrial justice practices. We were delighted to have been able to support the drafters of this bill and to work with partner organizations to gather up support. This is a bipartisan effort, sponsored by two senators with pretrial justice wins at home—California is poised to pass sweeping legislation (Assembly Bill 42 and Senate Bill 10) and Kentucky was the first state to deploy the Arnold Foundation’s Public Safety Assessment statewide.”

Pretrial Release by Speedy-Trial Law: An Underused Device, N.Y.L.J., Mar. 31, 2017, at 4
“Of the more than 7,000 prisoners confined daily at Rikers Island awaiting trial, some 1,400 have been held for more than one year. Several hundred have been forced to wait more than two years. The vast majority of such long-term detainees, all presumed innocent, are too poor to pay the bail that enables other accused persons to live and prepare for trial outside of jail. Yet even for those so confined by poverty, there is a mechanism to achieve freedom while the criminal process moves at its glacial pace toward resolution of a case. It is the law of speedy-trial. Both state law and the federal constitution present paths to release pending trial.”

Prosecutors Ask Court to End Texas County’s Cash Bail for Misdemeanors, Reuters, Aug. 9, 2017
“Dozens of current and former state, county and federal prosecutors asked a U.S. appeals court on Wednesday to strike down a bail system in the most populous Texas county that requires cash bonds for misdemeanor defendants, saying it can destroy the lives of the poor. Many U.S. states and counties have launched bail reforms to ensure people arrested for minor offenses are not held until their trial just because they are too poor to pay bond, especially if they do not pose an imminent risk to the public. Harris County District Attorney Kim Ogg, a Democrat, joined the amicus brief that challenges the bail procedures in the county where she works, which contains Houston and has a population exceeding 4 million people.” See O’Donnell v. Harris County, No. 17-20333 (5th Cir. Aug. 8, 2017) (amicus brief)

Prosecutors: Inmate’s Water Cut Off for 7 Days Before He Died of Dehydration, USA Today, Apr. 24, 2017
“Milwaukee County Jail staff cut off an inmate’s access to water for seven days straight before he died of dehydration, and the man was too mentally unstable to ask for help as he slowly died, prosecutors said Monday at the beginning of an inquest. The statements from prosecutors are the first official account validating what inmates previously told the Milwaukee Journal Sentinel about Terrill Thomas’ access to water in his cell. In prior interviews, the inmates said they begged jail staff to help Thomas as he grew weak without water. Thomas spent nine days in jail before he died in his cell in April 2016.”

Public Defender Lambastes Judicial Ruling to Not Fix Flawed Court Software, Ars Technica, Apr. 29, 2017
“The public defender’s office in Alameda County, California, has recently appealed a local judge’s recent rejection of its demands to fix an upgraded court software. That software led to what the public defender’s office has dubbed the unconstitutional and erroneous jailing of some of its clients.”

Punished for Being Poor, Slate, Oct. 20, 2017
“In theory, bail reform is ascendant in San Francisco. In practice, defendants are still locked up because they can’t afford to buy their freedom.”

Push for Bail Reform in California Finds Big-Name Allies, Courthouse News, Aug. 25, 2017
“Bail reform will have to wait a little longer in California, as a bill to effectively eliminate cash bail will be revisited in the Legislature next year. But for the bill’s authors, state Sen. Bob Hertzberg of Los Angeles and Assemblyman Rob Bonta of Alameda, the delay isn’t a setback. The Democratic lawmakers said Friday they’ve gained critical allies in Gov. Jerry Brown and the Judicial Council, the body tasked with helping courts carry out changes in the statute.”

Putting Fewer Innocents Behind Bars, N.Y. Times, July 3, 2015
“Pretrial detention should be reserved for flight risks or dangers to society. Yet 62 percent of people in jail in America are awaiting trial (up from 40 percent 30 years ago) — and most are charged with crimes no more dangerous than shoplifting, driving with a suspended license, public drunkenness, drug possession, missing their curfew or otherwise violating parole. Pre-trial detention fills jails in America with people who need help — around two-thirds of detainees have a mental illness or are substance abusers — and it makes their problems worse. Many detainees spend more time in jail before trial than the maximum sentence for the charge against them. “The system punishes these individuals while they are presumed to be innocent, and then releases them once they are found guilty,” said a report published in February by the Vera Institute of Justice, which works with governments to demonstrate and evaluate innovative projects in criminal justice. The first pre-trial services program in the United States, the Vera Manhattan Bail Project, began in 1961. The organization is still fighting that battle.”

Putting the Bail Industry’s Lawsuits in Context, PJI Blog, Sept. 6 2017
“Litigation has been a successful strategy in challenging longstanding money bail practices across the country. In just a few years groups like Civil Rights Corps and Equal Justice Under Law have changed the pretrial legal landscape, resulting in more equitable treatment of arrested individuals The for-profit bail industry has been active in fighting these cases and has now put its weight (and money) behind two legal challenges against recent pretrial system improvements in New Jersey and New Mexico. We recommend you read the complaints (linked here and here) and assess each case for yourself. Before you make up your mind about the merits of these cases, however, we’d like to add some context. Both hinge on two key notions. The first is the “option of bail”—defined by bail industry proponents as the option to pay a financial bond for one’s pretrial release. The second notion concerns the imposition of “pre-arraignment restraints”—characterized in the complaints as release conditions, such as home detention or electronic monitoring, that seek to limit the movement of certain individuals as they await trial in the community.”

Report Grades Bail Systems Across the U.S., and Only One State Gets an A, Huffington Post, November 1, 2017
“As activists and lawmakers make strides in overhauling controversial money bail practices around the nation, a new report is helping the public to understand what successful reform looks like. The nonprofit Pretrial Justice Institute released its first state scorecard on Wednesday, grading all 50 states on their pretrial justice practices. The report issues a letter grade for each state based on its pretrial detention rate, its use of pretrial risk assessment and its reliance on payment as a condition for release before trial.”

Shrinking the Financial—and Human—Cost of Jail in New York City, Think Justice Blog (Vera Institute of Justice), May 17, 2017
“Recognizing the high human and financial cost of jail, New York City has been on the forefront of criminal justice reform in the United States for the past two decades. A falling crime rate, changes in law enforcement practices, and an expansion of alternatives to incarceration have driven the jail population into decline for the past 25 years. Today, the jail population stands at 9,790—half the size it was in 1992. And just as remarkable is the continued pace of the decline. In just the past three years, the city’s jail population has declined by 18 percent. As the mayor plans to reduce the city’s jail population further, shrinking it by half over the next 10 years, policymakers also have the opportunity to downsize jail operations, freeing up resources for other city priorities such as education and workforce training. This would mean closing housing units and reducing staffing levels. For safe and effective downsizing, these steps need to be completed in tandem. Reducing the jail population without downsizing operations will produce only modest savings, because personnel costs make up the bulk of jail expenses. But slashing spending without reducing the population might result in fewer services or a higher inmate-to-officer staffing ratio, both of which can negatively impact jail safety.”

Startup Seeks to Bring Bail Bond Process Online, ABA J., Sept. 15, 2016
“Betterbail brings the process of applying for, approving and paying for a bail bond in New York City online. A licensed bond agent associated with Betterbail handles the actual bond and delivers it to the court with authority over the person being held. After that person is out, Betterbail allows weekly check-ins via mobile phone, with photos tagged with the person’s physical location. These replace the in-person check-ins used by other New York bail agencies. Weber plans to develop similar partnerships with bond agents in other jurisdictions. He also plans to add automatic text and email updates for defendants and the people guaranteeing their bail.”

Suffolk Judge Tightens Rules for Jailing Traffic Defendants, Newsday, Feb. 22, 2017
“Suffolk’s Traffic and Parking Violations Bureau can no longer even contemplate jailing or imposing bail on a traffic defendant without sending the case to a District Court judge, according to a new order from Suffolk Administrative Judge C. Randall Hinrichs.”

Suicide at Texas Jail Results in Firings, Lawsuit, Investigation and Legislation, Prison Legal News, July 28, 2017
“On July 10, 2015, Sandra Bland was stopped while driving in Prairie View, Texas. The 28-year-old Illinois native was in the process of moving to Waller County when she was stopped by Texas State Trooper Brian Encinia, allegedly for changing lanes without signaling. A verbal altercation ensued over whether Bland had to put out the cigarette she was smoking, and Encinia arrested her for allegedly assaulting him. Three days later Bland was found hanging in an isolation cell at a jail operated by the Waller County Sheriff’s Office (WCSO). Her death was ruled a suicide. [See: PLN, Jan. 2017, p.44].”

Suit Says San Francisco Bail System Is an Equal Protection Violation, ABA Journal, Nov. 2, 2015
“A federal class action filed last week claims the bail system in San Francisco discriminates against the poor in violation of the Constitution’s guarantee of equal protection. The suit (PDF) was filed by Washington, D.C., nonprofit Equal Justice Under Law, report the San Francisco Examiner, Bay City News and Courthouse News Service. The lead plaintiffs are Riana Buffin and Crystal Patterson, two women jailed because they couldn’t afford bail.”

Supreme Court Refuses to Block Order Finding Texas County’s Bail System Discriminatory, Paper Chase (Jurist), June 9, 2017
“The US Supreme Court [official website] on Wednesday refused to block [docket] a finding that a Texas county’s bail system discriminates against the poor. Officials of Harris County petitioned the court on Tuesday [AP report] for an emergency order to block the ruling by the US Court of Appeals for the Fifth Circuit [official website] which called for the release of inmates who were incarcerated for not being able to afford bail. District Judge Lee Rosenthal of the Southern District of Texas [official website] ruled in April that inmates who signed affidavits swearing to their financial situations could be released from the county jail as the bail system was in violation of equal protection rights and due process safeguards against incarceration without proper procedure or affording those held the opportunity to be heard. The county jail began releasing inmates late Tuesday and will continue to do so. The county will continue its appeal of the ruling.”

Texas Justice of the Peace Sets $4 Billion Bond in Murder, Crime Report, Feb. 10, 2017
“The possibly record-setting figure probably will be challenged under the Eighth Amendment protection against excessive bail. It far exceeds the $3 billion bond once set for New York real estate heir Robert Durst, which was lowered to $450,000.”

These NFL Stars Say It’s Time to End Cash Bail. Here’s Why., In Justice Today, Oct. 16, 2017
“A wide range of elected officials, cultural luminaries, criminal justice advocates, fiscal conservatives, and law enforcement organizations agree that the current bail system is broken. Bail reform is possible through legislative and judicial change, and also through policy changes that local prosecutors can make.”

This Group Is Putting Women at the Center of the Battle to Fix California’s Bail System, Los Angeles Times, Sept. 4, 2017
“So she founded the Essie Justice Group, a support network for women whose loved ones are in prison. The organization has been one of several civil rights and advocacy nonprofits that have pushed a hotly debated state legislative package to overhaul how courts grant offenders bail before trial in California. After one those bills stalled in the Assembly, Gov. Jerry Brown on Friday delayed action on a second, identical bill until next year, but pledged to continue working on the issue with members from all three branches of government.”

Three Key Parts to New Orleans’ Plan to Slash Jail Population, New Orleans Advocate, Nov. 14, 2016
“A road map for reducing New Orleans’ jail population by hundreds of inmates by 2018 includes efforts to use mental health services instead of arrests, beefing up the staffing of the Public Defenders Office and expediting hearings for those awaiting trial.”

To Shrink Jail Population, a Bail Program Is Expanding, N.Y. Times, Aug. 29, 2017
“Such short jail stays are a focus of efforts to change the bail system, which gained traction after the death of Kalief Browder, who was accused of stealing a backpack in 2010 and held without a trial for three years at Rikers Island on $3,000 bail. The charges were eventually dropped and Mr. Browder committed suicide in 2015 at age 22. Two recent reports commissioned by the city after his death highlighted the difficulty of paying bail and recommended ways for making it easier to pay. Mayor Bill de Blasio has made accelerating bail payment part of his plan to cut the city’s jail population in half and close the Rikers Island complex. The city is financing a $478,800 expansion of the program, called Bail Expediting Program, and more people will be eligible for the program. Currently, the Bail Expediting Program, or BEX, helps people whose bail is less than $3,500 by contacting relatives and guiding them through the payment process. Under the city’s expansion plan, people with bail amounts of up to $5,000 will be eligible for the program. If bail is to be paid imminently, workers like Ms. Davis can place holds with the Department of Correction to delay transporting defendants to jail.”

Too Poor to Make Bail: Alabama Forced to Reform ‘Two-Tiered’ Jail System, Al.com, Oct. 11, 2017
“Nearly half a million people are in jail across the country who have not been convicted of a crime, but who remain there solely because they lack the money to make bail. They’re presumed innocent, but while in jail they stand to lose their jobs, their homes, even custody of their kids. The tide is turning nationwide and across Alabama. This is one area in the criminal justice in Alabama where Reckon by AL.com finds piecemeal reforms slowly moving across Alabama, county by county, city by city.”

Trapped — Brave New Films Presents the Bail Trap Game, In Justice Today, Aug. 21, 2017
“Being trapped results in physical experiences beyond those caused by the immediate environs in which you are stuck. You feel it in your muscles, in your chest, in your throat and in your stomach. It is, to say the least, uncomfortable. While I [Robert Greenwald] can’t claim to have ever been thrown behind bars, with no good options and for no good reason, I can safely say that this is likely at least some of what it feels like to be victimized by the unjust money bail system. And we hope — strangely enough — that some of this translates into what you feel playing The Bail Trap Game.”

Trial, But Not a Speedy One: St. Louis Inmates Wait in Jail Four Times Longer Than in the County, St. Louis Public Radio, Sept. 20, 2017
“Jail inmates at the St. Louis County Justice Center in Clayton stay for an average of 59 days before their cases are tried or dismissed. But 10 miles away, at the Medium Security Institution in the city of St. Louis, the typical prisoner waits for eight months. The St. Louis jail, which does not have air conditioning in the men’s dorms, drew protests this summer after inmates cried for help during a heat wave. The city installed temporary cooling units at the facility, also known as the Workhouse, and extreme temperatures have since subsided. Inmates and their families say more must be done to improve conditions in the aging facility. But city officials say there isn’t much more they can do.”

Unconstitutional to Jail Poor Defendants Who Can’t Pay Bail, Feds Argue, Newsweek, Aug. 20, 2016
“The federal government has taken a stand on the side of impoverished defendants, arguing in a U.S. appeals case that holding people accused of crimes in jail solely because they cannot afford bail is unconstitutional. The U.S. Justice Department filed an amicus brief in a Georgia case in which a defendant was jailed for six days because he couldn’t afford $160 bail on a misdemeanor charge. “Bail practices that incarcerate indigent individuals before trial solely because of their inability to pay for their release violate the Fourteenth Amendment,” the Justice Department said, according to NBC. Fixed bail schedules without regard to ability to pay “unlawfully discriminate based on indigence,” the government argued, as the Supreme Court has ruled that jailing poor defendants without considering alternatives “effectively denies equal protection to one class of people within the criminal justice system,” the Associated Press reported.”

U.S. Court of Appeals for the 11th Circuit Sends Bail Case Back to District Court, Calhoun Times, Mar. 15, 2017
“District Judge Harold Murphy had earlier granted an injunction against the city because he determined that the city’s bail system discriminated against people based on their wealth, however, the [Court of Appeals] judges ruled that Judge Murphy’s injunction order violated Rule 65 of the Federal Rules of Civil Procedure, insofar as it requires the city to simply follow the law, but then offers no guidance or specificity as to what the constitutionally minimal criteria may be. Of a number of similar cases around the country that have challenged the constitutionality of money bail, only one has not been vacated on the theory of underlying equal protection, which offers that criminal defendants are discriminated against because they cannot afford to pay for their bail after arrest.”

Utah Bail-Reform Move Going Ahead Despite Lawmaker Concerns, U.S. News & World Report, Sept. 21, 2017
“A new plan that would address concerns about people being held in jail because they can’t afford bail is moving ahead in Utah despite some lawmakers’ concerns that it could let dangerous people back on the streets, state courts officials said Thursday. Supporters argue the automated program giving judges information about suspects’ risk history is a step toward a fairer system that will be safer because risky suspects won’t be able to buy their way out of jail without abolishing cash bail.”

Videotapes Reveal Flaws in Harris County Bail Bond Hearings, Houston Chronicle, Nov. 29, 2016
“The videos illustrate allegations that have surfaced in a federal lawsuit filed in May in Houston that accuses hearing officers, county court-at-law judges and the county sheriff of violating the rights of misdemeanor criminal defendants by jailing nearly everyone who can’t afford bond without properly considering their ability to pay. A group of nonprofits – including Equal Justice Under Law and the Civil Rights Corp, but not the organizing project – and the law firm of Susman Godfrey filed the suit on behalf of all misdemeanor offenders, saying their constitutional rights to equal protection were being violated.”

Want to Stop Jailing People for Failing to Pay Court Fees and Fines? Look to Biloxi, Mississippi, ABA J., Aug. 10, 2017
“As a result of the settlement, announced in March 2016, Biloxi agreed to hire a full-time public defender to defend those charged with nonpayment of fees and fines imposed by courts. People who enter payment plans or perform community service no longer will be charged additional fees. Judges will receive “bench cards” with steps to follow to conduct individualized assessments of ability to pay. The bench cards were developed by the National Task Force on Fines, Fees and Bail Practices, which has published resources for courts on the National Center for State Courts website. The card tells judges that they shouldn’t jail defendants for failing to pay court-ordered fees and fines unless a hearing is held to determine the reason. If the defendant can’t afford to pay, judges are instructed to consider alternatives to imprisonment.”

Weaponization of Plea Bargain Offers, NJ.com, Sept. 4, 2017
“Bail reform is a good foundational step, but is reform is needed in other areas. One such area is plea bargains. I [Albert B. Kelly] honestly never gave plea agreements much thought until an acquaintance shared an article from The Atlantic’s September edition, “Innocence is Irrelevant” by Emily Yoffe. It turns out that 94 percent of state-level criminal cases and 97 percent of federal ones are the subject of plea bargains. This means that very few cases go to trial. It also means that prosecutors rarely need to meet any burden of proof — when the simple threat of a stiff sentence resulting from a trial will do. Of course, you might think if there’s a problem in need of a fix, it’s that criminals who have committed serious felonies are being allowed to plead to a lesser charge. That may be a concern, but I’m more troubled by suspects who end up pleading guilty to reduced-charge offenses that they didn’t commit.”

We’re Jailing Way More People Who’ve Been Convicted of Exactly Nothing, Washington Post, Apr. 24, 2017
“New York City Mayor Bill de Blasio’s promise to close the notoriously overcrowded and brutal Riker’s Island jail made national news last month, but less famous policymakers all over the country struggle with jail overcrowding on a regular basis (see, for example, Kansas, Indiana and Upstate New York). This raises an intriguing question: If jails are for criminals, why are there still so many people behind bars after decades of declining crime? The answer is both surprising and disturbing.”

We’re Living in a Surveillance Society, So Why Do We Need Bail?, ACLU Blog, Apr. 25, 2017
“The ACLU is dedicated to fighting the rise of a surveillance society. We represent Americans who don’t want to live in a world where our every movement, our every association, our every purchase, and our every communication is tracked and recorded. That is no way for a free people to live. Nevertheless, despite our best efforts, we now live in a society where our activities increasingly leave behind “data trails” of various kinds, with highly inadequate protections for our privacy. Cameras, license plate readers, and wireless RFID chips record our comings and goings on public transit, through toll booths, and into and out of office buildings. Stores and credit card companies log our purchases, Internet companies log our IP addresses, and our cell phones betray our locations. But ironically, the very growth of such tracking sharpens our case in another battle we at the ACLU are fighting: to reform our bail system.”

When Bail Is Out of Defendant’s Reach, Other Costs Mount, N.Y. Times, June 11, 2015, at A1
“Though money bail is firmly entrenched in the vast majority of jurisdictions, the practice is coming under new scrutiny in the face of recent research that questions its effectiveness, rising concerns about racial and income disparities in local courts, and a bipartisan effort to reduce the reliance on incarceration nationwide. Colorado and New Jersey recently voted to revamp their bail systems, while in New Mexico last November, the State Supreme Court struck down a high bail it said had been set for the sole purpose of detaining the defendant. This year, the Department of Justice weighed in on a civil rights lawsuit challenging bail amounts based on solely on the charge, calling them unconstitutional. In several states, including Connecticut, New York and Arizona, chief justices or politicians are calling for overhauls of the bail system.”

When It Comes to Pretrial Release, Few Other Jurisdictions Do It D.C.’s Way, Washington Post, July 4, 2016
“Nationally, about 47 percent of felony defendants with bonds remain jailed before their cases are heard because they cannot make bail. At the D.C. jail on 19th Street SE, no one is locked up on a criminal charge because of an inability to pay. “We’ve proven it can work without money, but the whole country continues as if in a trance to do what we know does not work,” said D.C. Superior Court Judge Truman Morrison. The new way of thinking he promotes tracks the federal system, which bars judges from setting financial barriers to keep someone locked up.”

Who Is Putting the Most People in Jail? Not New York, Chicago, or LA., Marshall Project, Dec. 15, 2015
“The Incarceration Trends Project research team at the Vera Institute of Justice has created a database that will allow anyone to examine the jail incarceration rate in their county, compare it to others, analyze trends over time, and assess the impact of its reform efforts. The findings, which also appear in an accompanying report, underscore the importance of today’s focus on jails. As with prisons, the jail population has increased significantly — more than four-fold — between 1978 and 2014. As with prisons, today’s jail incarceration rates are without historical precedent. The nationwide jail incarceration rate today is 326 per 100,000 county residents (aged 15-64). Yet in the 1970s, only rarely did the rate in the highest counties exceed 300 per 100,000. We have never been here before.”

Why Poor Ohioans Languish in Jail on Minor Accusations, Crime Report, Oct. 25, 2016
“Defendants who are poor often can’t make bail, while those of greater wealth are able to put up the money for their release. Cleveland.com is publishing vignettes about some of the people who have languished in jail because of their inability to make bail. One was accused of stealing underwear, another of drunken jaywalking. Yet another was accused of failing to appear in court to explain why he could not make payments to the court. Bail-reform advocates contend that all three could have been freed after their arrests without endangering the public.”

With Money Bail, System Continues to Criminalize Poverty, USA Today, July 27, 2017
“In April, a federal judge issued an expansive ruling striking down the money bail system in Harris County, Texas, where both women had been incarcerated. Judge Lee Rosenthal found that a money-based bail system for low-level offenders discriminates against the poor and has devastating consequences for those accused of crimes and their families. Decisions like this one are long overdue. Common sense dictates that people should not be held in jail simply because they cannot afford a monetary payment. Indeed, these principles are at the heart of the proposed Pretrial Integrity and Safety Act of 2017, which Sens. Kamala Harris, D-Calif., and Rand Paul, R-KY., introduced in Congress last month to help states move away from the use of money bail. The bill encourages states to come up with alternatives to money bail by offering Department of Justice grants to states that do. Those receiving funds must provide data that tracks whether the programs are successful. States also have to show that alternatives like risk assessments — used in New Jersey, for example, to determine the likelihood of an inmate fleeing if released — are used equally.”

Woman Jailed 96 Days Without Hearing or Lawyer Can’t Sue After Charge Is Tossed, Federal Judge Rules, ABA J., Oct. 21, 2016
“A woman who was indicted on a charge that turned out to be unsupported by the evidence can’t sue, even though she was jailed in Mississippi for 96 days without an arraignment or lawyer, a federal judge has ruled.”

Woman Locked Up for 49 Days Without Bail Because of a Bureaucratic Mistake, Reason, Dec. 20, 2016
“A Chicago-area woman—the mother of a six-year-old boy—was locked up for 49 days because of a series of miscommunications between several law enforcement agencies and the Cook County State’s Attorney’s office, CBS News reports.”

Yearlong Wait for DNA Testing Results Frustrates Utah Judge, Who Threatens to Put a Crime Lab Employee in Jail, Salt Lake Tribune, Nov. 30, 2016
“A Utah judge frustrated over a lack of DNA results from the state crime lab said if the results aren’t complete by next month, he’ll put a crime lab employee behind bars. Christopher Lee Monson has been in jail for the past 13 months, after prosecutors in Davis County charged him with rape and attempted kidnapping in connection with an alleged assault of his ex-girlfriend last October. . . . [Monson’s attorney, Mary] Corporon said Wednesday that her client’s case is hardly unique. He is not the first defendant to sit in jail for months as trial dates are canceled because of a lack of DNA results — and she is not the only defense attorney who has encountered this.”

Seminars

Aggressive Bail Litigation: Using the Law to Fight for the Release, NAPD, Aug. 4, 2016
“In recent years there has been an increased focus on fighting money bail. There has been a significant amount of litigation which has forced courts to consider a Defendant’s indigent status in deciding whether or not to set bail and if so, in what amount. This presentation will discuss the bail laws and how a person’s indigent status should to be considered. We will also discuss approaches to use to fight courts when they do not properly apply the bail rules and hold indigent individuals when there is no basis to find they will not return to court or at an amount they cannot afford to pay.”

Bail Reform in New York State: Moving Forward, NYSBA Program, May 3, 2016
“A program that will examine current law and address the issues regarding the need for reforming bail procedures in New York State courts.”

Get ’em Out . . . Keep ’em Out! Bail & Pretrial Release, Fed. Pub. Def. NDNY, Syracuse, NY, May 9, 2017
“For many defendants, the first time they meet a lawyer is through the screens and bars of a detention cell in a Courthouse. The overriding concern of the client at that point in time is obvious: “when can I get out of here?” For some, the answer is “in a few hours”; for most, the answer is “not for a while”. This brief outline, along with accompanying materials, will highlight the important statutory and constitutional provisions governing bail in New York State and Federal Courts, and discuss the practical considerations of getting your clients out of custody.”

Maintaining Momentum: Redefining the Purpose of Incarceration in the Ongoing Conversations about Criminal Justice Reform, JPO, American University, Mar. 30, 2017
“This summit will tackle the challenging question of how to maintain the momentum we’ve recently seen to reduce the number of people incarcerated in America’s jails and prisons. We will look at multiple trigger points in the criminal justice system and examine how decisions at each step impact mass incarceration and what changes can be made to alleviate this problem, saving money while promoting public safety and justice. In doing so, we seek to address the question what is the true purpose of incarceration.” See Agenda.

National Symposium on Pretrial Justice (PJI 2011)
“Just as the 1964 Conference drew attention to the many problems caused by the bail practices of that era and pointed to viable, effective alternatives, the 2011 National Symposium on Pretrial Justice convened by the Office of Justice Programs of the U.S. Department of Justice, together with the Pretrial Justice Institute (PJI), highlighted the major shortcomings in current pretrial release decision making practices and showcased efforts to improve those practices. The Symposium brought together representatives of associations from a broad array of stakeholder groups, including law enforcement, judges, prosecutors, public defenders, jails, and victims, as well as county, state, and federal legislative and executive branch officials, and private funders. This document presents the summary proceedings of that Symposium.”

Bibliographies and Collections

American Bail Coalition
“The resources provided by the American Bail Coalition in this library are designed as a starting point for any potential research or reference into the law, bail bond studies.”

Bail Lab (NYC Criminal Justice)
“The Bail Lab is scouting the best ideas and improve how we ensure people return to court and do not pose a danger to others. We are inviting everyone – from tech start-ups to people with a family member behind bars – to ‘crowdsource’ bail reform.” See also Bail Blog.

Bail Reform (Center for Court Innovation)
“In New York City, bail is set for approximately 55,000 defendants each year, over half of whom are charged with low-level offenses such as misdemeanors and violations. Although the bail amount is no higher than $1,000 in the vast majority of non-felony cases, most defendants are unable to post that amount and are thereby subject to pre-trial detention – a reality that has been decried by advocacy groups, newspapers, and public officials across the political spectrum. The Center for Court Innovation works to promote bail reform in a number of ways, including through Brooklyn Justice Initiatives‘ supervised release program.”

Bail Reform: A Curated Collection of Links (Marshall Project)
“Since 2014, The Marshall Project has been curating some of the best criminal justice reporting from around the web. In these records you will find the most recent and the most authoritative articles on the topics, people and events that are shaping the criminal justice conversation. The Marshall Project does not endorse the viewpoints or vouch for the accuracy of reports other than its own.”

Challenge Network (MacArthur Foundation)
“The Safety and Justice Challenge elicited an overwhelming response. A total of 191 applications were submitted from jurisdictions spanning 45 states. In 2015, 20 were selected to participate in the Challenge Network to develop plans for creating fairer, more effective justice systems. The Challenge Network sites represent 16 counties, 3 cities, and one state-wide system (Connecticut). They are geographically distributed throughout the country and have a diverse jail capacity size, ranging from 239 beds in Mesa County to as many as 21,951 beds in Los Angeles County. Collectively, the Challenge Network holds a jail capacity just under 100,000 and accounts for 11% of the national confined population in jails. The Network has a combined population of more than 42 million (2013 U.S. Census), accounting for approximately 13% of the total U.S. population. Within the Challenge Network, 11 of the participating jurisdictions are receiving substantial funding and expert technical assistance as Core Sites, and are currently working on implementing their plans to significantly reduce their jail populations. Nine Partner Sites are continuing their local reform work and planning with lower levels of funding and technical assistance, with the goal of being positioned to implement their plans next year.”

Criminal Justice Policy Program at Harvard Law School 50-State Criminal Justice Debt Reform Builder (Harv. L. Sch.)
“Criminal justice debt – the system of fees and fines in the criminal justice system – has serious consequences. The Criminal Justice Debt Reform Builder brings transparency to this area of significant legal complexity: it gives easier access to state laws that govern criminal justice debt and suggests policy solutions through the Criminal Justice Policy Program’s Confronting Criminal Justice Debt: A Guide for Policy Reform.”

Elimination of Bond Schedules (Pretrial Justice Institute)
“Jurisdictions should eliminate bond schedules that allow a defendant to pay money to get out of jail without appearing before a judge.”

Fighting the Systemic Shakedown of Poor People National Association for Public Defense, NAPD, April, 5, 2016
“NAPD has risen to address this challenge, discovering public defenders across the country employing many different strategies to challenge these issues. Based on the incredible interest from members and the urgency of the issue at hard, NAPD created a Fines & Fees Committee in 2015. The committee collected research from members on “no counsel courts,” compiled hundreds of resources on MyGideon and promoted them to the NAPD community, published a “Policy Statement on the Predatory Collection of Costs, Fines and Fees in America’s Criminal Courts,” supported media requests from external sources and responded to member requests for communications assistance, conducted four webinars, and provided information for developing state and federal law. The work is largely just beginning, but public defenders are committed to being part of the solution to this pervasive injustice.”

Glossary of Terms and Phrases Relating to Bail and the Pretrial Release or Detention Decision (PJI 2015)
“These predominantly legal terms are difficult enough without any layer of confusion and misuse. Accordingly, this glossary of terms and phrases has been written to provide current definitions, in context, and with historical references as needed, to clarify a comprehensive set of common terms relating to bail and the pretrial release and detention decision. The authors hope that the glossary will be used to find consensus on common terms and phrases to avoid needless distractions from the important work of making the administration of bail more effective. References to Black’s Law Dictionary (or “Black’s”) are to the Ninth Edition.”

Importance of Bail Reform, In Justice Today, July 31, 2017
“A wide range of cultural luminaries, criminal justice advocates, fiscal conservatives, and law enforcement organizations agree that the current bail system is broken. Bail reform is possible through legislative and judicial change, and also through policy changes that local prosecutors can make.”

Incarceration Trends Project (Vera Institute of Justice)
“The Incarceration Trends Project aims to inform the public dialogue, advance research, and help guide change by providing easily accessible information on the number of individuals in jail and prison for every county in the United States. The centerpiece of the project is this interactive data tool that can be used for reference and measurement by justice system stakeholders and others looking to understand how their county uses jail and prison incarceration and how their county compares with others over time. The tool allows users to explore problems—such as excessive growth, or racial or ethnic disparities—within a jurisdiction.”

Jail Reduction (Center for Court Innovation)
“The Research-Practice Strategies team brings together the Center for Court Innovation’s three primary areas of work: independent research, on-the-ground operating programs, and expert assistance. With the overriding goal of reducing the use of jails, Research-Practice Strategies seeks to improve justice-system responses to both defendants and victims, promote racial justice, and expand the use of restorative practices as an alternative to traditional sentences. We also provide expert assistance for two ambitious national justice-reform initiatives working along these lines—the MacArthur Foundation’s Safety and Justice Challenge, and The Price of Justice, a program of the Bureau of Justice Assistance—along with two restorative justice projects, funded by the National Institute of Justice and the Office on Violence Against Women. To read about our work on risk assessment and the risk-needs responsivity model—helping officials make more informed decisions at all stages of the criminal justice process, from bail to sentencing to reentry—see our page here.”

Justice Department Announces Resources to Assist State and Local Reform of Fine and Fee Practices, Justice News (DOJ), March 14, 2016
“The Department of Justice today announced a package of resources to assist state and local efforts to reform harmful and unlawful practices in certain jurisdictions related to the assessment and enforcement of fines and fees. The resources are meant to support the ongoing work of state judges, court administrators, policymakers and advocates in ensuring equal justice for all people, regardless of financial circumstance.”

MacArthur Foundation Safety and Justice Challenge
“The Safety and Justice Challenge is an initiative to reduce over-incarceration by changing the way America thinks about and uses jails. The initiative—an initial five-year, $75 million investment by the John D. and Catherine T. MacArthur Foundation—features a competition to help jurisdictions across the country create fairer, more effective local justice systems.”

National Task Force on Fines, Fees and Bail Practices (NCSC)
“The Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) formed a National Task Force on Fines, Fees and Bail Practices to address the ongoing impact that these legal financial obligations (LFOs) have on economically disadvantaged communities and to draft model statutes and court rules for setting, collecting, and waiving court-imposed payments.”

Pretrial Detention (Prison Policy Initiative)
“Exploring cost and outcome of detaining people before trial or deportation (i.e. instead of bail or other alternatives).” It contains an extensive collection of current reports on bail, jail and pretrial reforms.

Pretrial Detention, Bail and Due Process, LLRX, July 2, 2011
“Pretrial detention of suspects directly impacts the presumption of innocence. The cornerstone of the justice system is that no one will be punished without the benefit of due process. Incarceration before trial, when the outcome of the case is yet to be determined, cuts against this principle. The Founders were aware of the dangers inherent in indiscriminate imprisonment, which is one of the main reasons behind the inclusion of the Eighth Amendment in the Bill of Rights, prohibiting excessive bail. Historically, the laws limiting pretrial detention were enacted to change the focus from personal to penal purposes, thus remedying the abuses of earlier English monarchs who used jail before trial as a form of punishment. The need for bail is to assure that the accused will appear for trial and not corrupt the legal process by absconding. Anything more is excessive and punitive. The risks of abuse at this stage when the court takes its first look at an accused’s culpability must be scrutinized to avoid coercion or pre-punishment in the administration of justice. Scholars have pointed out the potential constitutional problems raised by federal and state laws that restrict access to bail or include criteria such as future dangerousness. And they have also tried to divine the Supreme Court’s position on the existence of a substantive constitutional right to bail that would trump restrictive legislative enactments. This article collects recent publications and other notable resources concerning the relationship between the administration of bail and the requirements of due process.”

Pretrial Online Resources (Nat’l Crim. Just. Assoc.)
“The NCJA Center for Justice Planning (NCJP) is a cooperative effort between the U.S. Department of Justice, Bureau of Justice Assistance (BJA) and the National Criminal Justice Association (NCJA) to support state, tribal, and local efforts to institutionalize comprehensive approaches to community-based strategic planning for justice. Working with jurisdictions that have sustained this approach and providing technical assistance to jurisdictions that are changing their planning strategies, the NCJP will establish comprehensive community-based strategic planning as a recognizable practice within the justice system. The NCJA Center for Justice Planning is a unique resource for planners at all levels of government and in all agencies and organizations responsible for developing strategies for delivering justice. Building on the knowledge and expertise of practitioners who are working to build communities through effective justice, the NCJP serves as the catalyst for transforming the practice of justice planning.”

Pretrial Release Advocacy (NACDL)
This site collects information on pretrial advocacy, defender practice manuals and a joint statement on the use of risk assessments.

Pretrial Release Conditions (NCSL)
“State law provides a framework for judges and other officials who are authorized to release defendants from custody before trial. Statute authorizes various methods of pretrial release that are generally known as “bonds.” Bonds can be unsecured, or they can be secured by various types of bonds. In addition to the types of bond, state law also specifically authorizes other additional conditions of release. Collectively, the types of bond and additional conditions that can be imposed by courts are known as conditions of pretrial release. Some state laws are more prescriptive about what kind and under what circumstances release conditions should be imposed and specifically authorize individual conditions of release. Most courts, however, have broad discretion to impose any condition determined to be reasonably necessary to ensure the appearance of the defendant or the safety of victims, witnesses and the public. . . . Comprehensive state information on the most common statutory conditions of pretrial release is available in the interactive map below.”

Pretrial Release Library (NIC)
“The National Institute of Corrections (NIC) is an agency within the U.S. Department of Justice, Federal Bureau of Prisons. The Institute is headed by a Director appointed by the U.S. Attorney General. A 16-member Advisory Board, also appointed by the Attorney General, was established by the enabling legislation (Public Law 93-415) to provide policy direction to the Institute.”

Reducing the Use of Jails (Vera Institute of Justice)
“Conversations about mass incarceration tend to focus on prison, but local jails admit 20 times more people annually. The long-term trend is shocking: In 1982, for every 100 arrests, 51 people were booked into jail. By 2012, even after crime rates plummeted, that ratio had swelled to 95 out of 100, reflecting a knee-jerk use of jail out of step with threats to public safety. Today, jails log a staggering 12 million admissions a year—mostly poor people arrested for minor offenses who can’t post bail, and for whom even a few days behind bars exact a high toll. It doesn’t have to be this way. Through the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge, our own office in New Orleans, and direct partnerships with jurisdictions nationwide, we’re helping officials use jails as they were intended: to protect communities from dangerous people. There’s no simple fix, so the work includes using alternatives to arrest and prosecution for minor offenses, recalibrating the use of bail, and addressing fines and fees that also trap people in jail.”

Organizations and Projects

Civil Rights Corps (CRC)
“Civil Rights Corps is a non-profit organization dedicated to challenging systemic injustice in the American legal system. We work with individuals accused and convicted of crimes, their families and communities, people currently or formerly incarcerated, activists, organizers, judges, and government officials to challenge mass human caging and to create a legal system that promotes equality and human freedom. Civil Rights Corps engages in advocacy and public education and specializes in innovative, systemic civil rights litigation with the goal of resensitizing the legal system and our culture to the injustice and brutality that characterize the contemporary American criminal system.”

Clean Slate Clearinghouse (CSG Justice Center)
“Record clearance—removing criminal history information from easy public access—may provide people with an opportunity to put their pasts behind them. The Clean Slate Clearinghouse provides people with criminal records, legal service providers, and state policymakers with information on juvenile and adult criminal record clearance policies in all U.S. states and territories.”

Decarceration Project (NYC LAS)
“The Decarceration Project, a project of The Legal Aid Society, is an ambitious city-wide campaign with the goal of reducing, and eventually eliminating, the unnecessary pre-trial incarceration of poor people in New York City.” See also The Legal Aid Society Is Launching the Decarceration Project to Reduce Pre-Trial Incarceration of Poor People, NYC LAS In the News, June 3, 2016.

Equal Justice Under the Law
“Equal Justice Under Law is a national civil rights legal nonprofit dedicated to achieving equality in our justice system by challenging wealth-based discrimination. We believe everyone should be treated equally, regardless of wealth-status. Unfortunately, our society currently operates two systems of justice: one for the rich and another for everyone else. The words “Equal Justice Under Law” are etched onto the façade of the United States Supreme Court. However, too often our legal system falls short of that goal, especially for people living in poverty. Sadly, violations of basic human and civil rights have become commonplace in our modern legal system. Our organization provides pro bono legal services to those most in need, giving a voice to the silenced and disenfranchised. Since our founding, we have filed 30 lawsuits in 16 states and the District of Columbia. So far, these legal challenges have achieved fundamental change across six states. We also strive to raise awareness about issues of inequality and advocate for federal and state legislators to pass laws that protect the most vulnerable among us.”

Front End of the Criminal Justice System (Arnold Foundation)
“LJAF [Laura and John Arnold Foundation]is leveraging data, analytics, and technology to improve decision making during the earliest part of the criminal justice process—from the time a defendant is arrested until the case is resolved. The decisions made at this stage—known as the pretrial phase—have enormous impacts on public safety, government spending, and fundamental fairness. Yet, in most jurisdictions, police, prosecutors, and judges typically have little information about the risks a given defendant poses or how to best mitigate those risks. Therefore, key decisions are often made in a subjective manner without the aid of rigorous research and objective metrics on which approach—incarceration, supervision, diversion, etc.—will be most effective in protecting public safety in each case. As a result, in many jurisdictions, approximately half of the highest-risk defendants are released before trial, often with minimal or no supervision, while significant numbers of low-risk, non-violent defendants are detained. LJAF’s front end work aims to fundamentally change how the system operates by developing objective, evidence-based tools, piloting and evaluating innovations, and performing foundational research that law enforcement, prosecutors, judges, and others can use—in concert with their professional discretion—to arrive at more effective decisions.”

National Association of Pretrial Services Agencies (NAPSA)
“The National Association of Pretrial Services Agencies’ (NAPSA) mission is to promote pretrial justice and public safety through rational pretrial decision making and practices informed by evidence. NAPSA’s core values include: learning; transparency and open communications; objective standards; collaboration; dignity; respect; and professional integrity. NAPSA’s core strategic approach is to provide evidence based standards and education to individuals and agencies.”

Pretrial Justice Institute (PJI)
“The Pretrial Justice Institute’s core purpose is to advance safe, fair, and effective juvenile and adult pretrial justice practices and policies that honor and protect all people. We work to achieve our core purpose by moving policymakers and justice system stakeholder to adopt and implement practices and policies through: • Educating key stakeholders • Moving stakeholders to action • Working in key states to advocate for change • Developing messages, stories, and media coverage in support of change • Connecting local jurisdictions to assistance.” See also University of Pretrial.

[1] See National Registry of Exonerations (2,121 exonerations as of Nov. 13, 2017).

[2] See Bryce Covert, America Is Waking Up to the Injustice of Cash Bail, The Nation, Oct. 19, 2017 (“Nationally, arrestees make up 70 percent of the jail population—pretrial detention is a major reason why the United States has the highest incarceration rate in the world. Nearly all of the growth in our jail population over the past 30 years is due to the detention of those not yet convicted of any crime. The number of Americans sitting in jail without a conviction is larger than most other countries’ entire incarcerated population.” (emphasis added)). See generally Joshua Aiken, Era of Mass Expansion: Why State Officials Should Fight Jail Growth (Prison Policy Initiative 2017) (“The 11 million people who go to jail each year are there generally for brief, but life-altering, periods of time. Most are released in days or hours after their arrest, but others are held for months or more, often because they are too poor to make bail. Only about a third of the 720,000 people in jails on a given day have been convicted and are serving short sentences, typically under a year and most often for misdemeanors. Jail policy is therefore in large part about how people — who are legally innocent, until proven guilty — are treated and about how policymakers think our criminal justice system should respond to low-level offenses.” (footnotes omitted)).

[3] See Coffin v. United States, 156 U.S. 432 (1895) (“The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Id. at 453 (emphasis added)); In re Winship, 397 U.S. 358 (1970) (“The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence—that bedrock “axiomatic and elementary” principle whose “enforcement lies at the foundation of the administration of our criminal law.” (citation omitted).” Id. at 363 (emphasis added)); Brown v. Plata, 131 S.Ct. 1910 (2011) (“As a consequence of their own actions, prisoners may be deprived of rights that are fundamental to liberty. Yet the law and the Constitution demand recognition of certain other rights. Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment.” Id. at 1928 (emphasis added)).

[4] Jail is where unguarded moments are on display twenty-four hours day, an unsurpassed warrantless surveillance. See generally Peter A. Joy, Brady and Jailhouse Informants, 57 Case W. Res. 619 (2007); Robert M. Bloom, Jailhouse Informants, Crim. Just., Spring 2003.

[5] It’s a long road from the Blackstone ratio to the risk assessments of preventive detention. See generally Ken Strutin, The Age of Innocence: Actual, Legal and Presumed, LLRX, May 5, 2011 (“Better that ten guilty persons escape than that one innocent suffer.” See Blackstone Ratio in 4 William Blackstone, Commentaries 358; Alexander Volokh, n Guilty Men, 146 U. Penn. L. Rev. 173 (1997)).

[6] See Bail and Pretrial Detention FAQs (Federal Defenders S.D.N.Y., E.D.N.Y.); What You Should Know About Bail (NYC LAS). See generally Timothy R. Schnacke et al., The History of Bail and Pretrial Release (PJI 2010); Wendy Shang, On the Long History of Bail, PJI Blog, Oct. 3, 2017. Excessive bail is also the gateway to mass incarceration. See generally Peter Wagner and Bernadette Rabuy, Mass Incarceration: The Whole Pie, Prison Policy Initiative Brief, March 14, 2017 (with infographic); Ken Strutin, Mass Incarceration and the ‘Degree of Civilization’, LLRX, Sept. 4, 2012 (“Incarceration is when a person loses their freedom pending trial or by serving a sentence. Mass incarceration is when millions of people are imprisoned and kept there based on a generation of tough on crime policies. Viewed another way, incarceration is a personal problem; mass incarceration is everyone’s problem. And the number of people behind bars, which is higher in the United States than anywhere in the world, creates a ripple effect throughout the criminal justice system and society at large.” (footnote omitted)).

[7] See generally Chp. 3 “The Lawyer’s Entrance into the Case—First Steps” in Anthony G. Amsterdam and Randy Hertz, Trial Manual 6 for the Defense of Criminal Cases (ALI 6th ed. 2016); Chp 34 “The Rights of Pretrial Detainees” in A Jailhouse Lawyer’s Manual (Colum. Hum. Rts. L. Rev. 11th Ed. 2017); Ken Strutin, Preparing Bail Applications, Prac. Litig., Sept. 1995, at 85; Ken Strutin, Habeas Corpus as Tool to Review Bail Decisions, N.Y.L.J., Nov. 15, 1995, at 1.

[8] See Manuel v. City of Joliet, 137 S.Ct. 911 (2017) (Fourth Amendment); Laura I. Appleman, Nickel and Dimed into Incarceration: Cash-Register Justice in the Criminal System, 57 B.C. L. Rev. 1483 (2016) (Sixth Amendment); Scott Howe, Implications of Incorporating the Eight Amendment Prohibition on Excessive Bail, 43 Hofstra L. Rev. 1039 (2015) (Eighth Amendment). See generally Jauch v. Choctaw, No. 16-60690 (5th Cir. Oct. 24, 2017) (“[W]e conclude that indefinite pre-trial detention without an arraignment or other court appearance offends fundamental principles of justice deeply rooted in the traditions and conscience of our people. The same traditions that birthed our Sixth Amendment right to a speedy trial and Eighth Amendment prohibition of excessive bail condemn the procedure at issue.” Id. at 9 (emphasis added)).

[9] Risk of flight takes on new meaning in an era of crowdsourced surveillance and constant contact. See Jay Stanley and Andrea Woods, We’re Living in a Surveillance Society, So Why Do We Need Bail?, ACLU Blog, Apr. 25, 2017.

[10] See Lauryn P. Gouldin, Disentangling Flight Risk from Dangerousness, 2016 B.Y.U.L. Rev. 837.

[11] See Carlos Berdejó, Criminalizing Race: Racial Disparities in Plea Bargaining, SSRN (2017); Will Dobbie et al., Racial Bias in Bail Decisions, SSRN (2017); Julia Angwin and Jeff Larson, Bias in Criminal Risk Scores Is Mathematically Inevitable, Researchers Say, ProPublica, Dec. 30, 2016; Marie VanNostrand, Pretrial Risk Assessment – Perpetuating or Disrupting Racial Bias?, Pretrial Justice Institute Blog, Dec. 6, 2016.

[12] See Alexander Bunin, The Constitutional Right to Counsel at Bail Hearings, ABA Crim. Just., Spr. 2016, at 23; Don’t I Need a Lawyer? Pretrial Justice and the Right to Counsel at First Judicial Bail Hearing (Nat’l Const. Proj. 2015); Douglas L. Colbert, When the Cheering (for Gideon) Stops: The Defense Bar and Representation at Initial Bail Hearings, Champion, June 2012, at 10; Right to Counsel at Initial Appearance Before a Judicial Officer at Which Liberty Is at Stake or at Which a Plea of Guilty to Any Criminal Charge May Be Entered (NACDL Board Resolution Feb. 19, 2012).

[13] See Ken Strutin, Restraints on Liberty Before Trial, N.Y.L.J., Apr. 24, 1995, at 1 (“The law of bail is only one bulwark of liberty. The Criminal Procedure Law recognizes that there are times when a defendant must be released before trial regardless of bail. This is the law of mandatory release. . . . Restraints on liberty in post-arraignment settings are central to several provisions of the Criminal Procedure Law: 170.70, 180.80 and 190.80. These sections of the law require a defendant’s release when the government fails to meets its obligations on time. The key to mandatory release is that a defendant should not remain incarcerated indeterminately based on an insufficient charging instrument. CPL 170.70’s purpose is to protect the defendant’s right to prosecution by information only and, more specifically, to guarantee that a defendant will not be deprived of this liberty beyond a reasonable, finite period if the prosecution has violated that right.” Id. (footnotes omitted)).

[14] See Thomas M. O’Brien, Pretrial Release by Speedy-Trial Law: An Underused Device, N.Y.L.J., Mar. 31, 2017, at 4 (“Of the more than 7,000 prisoners confined daily at Rikers Island awaiting trial, some 1,400 have been held for more than one year. Several hundred have been forced to wait more than two years. The vast majority of such long-term detainees, all presumed innocent, are too poor to pay the bail that enables other accused persons to live and prepare for trial outside of jail. Yet even for those so confined by poverty, there is a mechanism to achieve freedom while the criminal process moves at its glacial pace toward resolution of a case. It is the law of speedy-trial. Both state law and the federal constitution present paths to release pending trial.” (footnote omitted)). See also Durrie Bouscaren, Trial, But Not a Speedy One: St. Louis Inmates Wait in Jail Four Times Longer Than in the County, St. Louis Public Radio, Sept. 20, 2017; Jessica Miller, Yearlong Wait for DNA Testing Results Frustrates Utah Judge, Who Threatens to Put a Crime Lab Employee in Jail, Salt Lake Tribune, Nov. 30, 2016.

[15] See, e.g., Darnell v. Pineiro, 849 F.3d 17 (2nd Cir. 2017) (“The [twenty] plaintiffs alleged that they were each subjected to appalling conditions of confinement while held pre-arraignment at Brooklyn Central Booking (“BCB”) with deliberate indifference to the deprivation of their Fourteenth Amendment due process rights.” Id. at 20); Andrew Keshner, Civil Rights Suit Over Brooklyn Central Booking Conditions Clears Hurdle, N.Y.L.J., Feb. 21, 2017; Ken Strutin, Cognitive Sentencing and the Eighth Amendment, N.Y.L.J., Mar. 24, 2015, at 5 (“Some federal courts have accepted the idea that harsh conditions of pretrial confinement will support a presentence reduction. Of course, the judges are acknowledging sub silentio that pretrial detention is the beginning of punishment.” Citing United States v. Carty, 264 F.3d 191 (2d Cir. 2001) and United States v. Pressley, 345 F.3d 1205 (11th Cir. 2003)). See generally Amber Baylor, Beyond the Visiting Room: A Defense Counsel Challenge to Conditions in Pretrial Confinement, 14 Cardozo Pub. L. Pol’y & Ethics J. 1 (2015).

[16] See United States v. Sanchez-Gomez, 859 F.3d 649 (9th Cir. 2017) (“This right to be free from unwarranted shackles no matter the proceeding respects our foundational principle that defendants are innocent until proven guilty. The principle isn’t limited to juries or trial proceedings. It includes the perception of any person who may walk into a public courtroom, as well as those of the jury, the judge and court personnel. A presumptively innocent defendant has the right to be treated with respect and dignity in a public courtroom, not like a bear on a chain. (citation omitted).” Id. at 661-662). See also Governor Cuomo Signs Legislation to Prohibit Shackling of Pregnant Inmates During Transportation, NY Gov. Press Release, Dec. 22, 2015 (“Governor Cuomo signed legislation relating to the restraint of pregnant inmates. The bill (A.6430-A/S.983-A) [N.Y. Corr. L. § 611] prohibits the use of restraints during the transport of all pregnant inmates at State and local correctional facilities, and within eight weeks after the delivery or pregnancy outcome, except in the most extraordinary of circumstances.”).

[17] Imprisoning the individual implicates the welfare of family and community. See, e.g., Ronnie Cohen, Pregnant Opioid Users Need Treatment, Not Jail, Pediatricians Say, Yahoo News, Feb. 23, 2017. See also George L. Blum, Prison Inmate’s or Pretrial Detainee’s Eighth Amendment Rights, or Rights Related to Claims of “Deliberate Indifference,” with Respect to Pregnancy, 5 A.L.R.7th Art. 7 (2015); Robin Levi et al., Creating the Bad Mother: How the U.S. Approach to Pregnancy in Prisons Violates the Right to Be a Mother, 18 UCLA Women’s L.J. 1 (2010-2012); Reproductive Injustice: The State of Reproductive Health Care for Women in New York State Prisons (CANY 2015). But see State v. Williams, No. A-4417-16T6 (N.J. Super. Ct. Sept. 29, 2017) (“Because we conclude that the trial judge abused his discretion in giving defendant’s pregnancy greater weight than all other pertinent factors in his determination to release her, we reverse. Pregnancy, like any other medical condition, is only considered for its impact on the risk of a defendant posing a danger to the community, obstructing justice or failing to appear in court. N.J.S.A. 2A:162-20.” Id. at 2).

[18] See Callous and Cruel: Use of Force Against Inmates with Mental Disabilities in U.S. Jails and Prisons (HRW 2015). See generally Jennifer Bronson, Indicators of Mental Health Problems Reported by Prisoners and Jail Inmates, 2011-2012 (BJS 2017); Doris J. James and Lauren E. Glaze, Mental Health Problems of Prison and Jail Inmates (BJS 2006).

[19] See Keith Humphreys, We’re Jailing Way More People Who’ve Been Convicted of Exactly Nothing, Washington Post, Apr. 24, 2017.

[20] See Bernadette Rabuy, The Life-Threatening Reality of Short Jail Stays, Prison Policy Initiative Blog, Dec. 22, 2016 (“The rate of suicide in local jails — which generally hold people detained pretrial or convicted of low-level offenses — is far greater than that of state prisons or the American population in general.”); Margaret E. Noonan, Mortality in Local Jails, 2000-2014 – Statistical Tables (BJS 2016) (“More than a third (425 of 1,053 deaths, or 40%) of inmate deaths occurred within the first 7 days of admission.”). See generally Mortality in Local Jails and State Prisons (BJS).

[21] This encompasses limitless, prolonged and indefinite detention. See also Spencer S. Hsu, D.C. Jail Held Man for 77 Days After His Case Was Dropped Until Another Inmate Flagged an Attorney, Washington Post, Oct. 1, 2017; NYCLU Statement on New State Regulations for Solitary in Local Jails, ACLU News, Oct. 18, 2017.

[22] See, e.g., In the Matter of Sardino, 58 N.Y.2d 286, 289-290 (1983) (“These court records also demonstrated that the petitioner regularly abused his authority with respect to setting bail.” Id. at 289).

[23] See United States v. Marion, 404 U.S. 307 (1971) (“Arrest is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and friends.” Id. at 320); Gerstein v. Pugh, 420 U.S. 103 (1975) (“The consequences of prolonged detention may be more serious than the interference occasioned by arrest. Pretrial confinement may imperil the suspect’s job, interrupt his source of income, and impair his family relationships. (citation omitted). Even pretrial release may be accompanied by burdensome conditions that effect a significant restraint of liberty. (citation omitted). When the stakes are this high, the detached judgment of a neutral magistrate is essential if the Fourth Amendment is to furnish meaningful protection from unfounded interference with liberty. Accordingly, we hold that the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest.” Id. at 114).

[24] See Philip F. Cardarella, Plea Factories’ Gum Up Public Defender System, Kansas City Star, Oct. 30, 2017 (“Incarcerated defendants — desperate to save jobs, among other issues — often plead guilty regardless of the merits of the case against them and regardless of guilt. Public defenders who had no real knowledge of cases are forced to participate.”); Albert B. Kelly, Weaponization of Plea Bargain Offers, NJ.com, Sept. 4, 2017.

[25] See Megan T. Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes, SSRN (2017); Kristian Lum and Mike Baiocchi, Causal Impact of Bail on Case Outcomes for Indigent Defendants, arXiv:1707.04666v1 [stat.AP] (Cornell U. Libr.) (2017); Paul S. Heaton et al., Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711 (2017); Emily Leslie and Nolan G. Pope, Unintended Impact of Pretrial Detention on Case Outcomes: Evidence from NYC Arraignments, Working Paper (U. Chicago 2016).

[26] For instance, online jail photos and police blotters can create a perpetual digital perp walk, which cancels the presumption of innocence and over punishes the guilty. See, e.g., David Kravets, Judge Spanks Mugshots.com Hard for Charging for Photo Removal, Ars Technica, Sept. 27, 2017 (discussing Gabiola v. Keesee, No. 16-02076 (N.D. Ill. Sept. 26, 2017)); Jail Faces Class-Action Lawsuit for Posting Mug Shots Online, ABC News, Sept. 22, 2017. See generally Lauro v. Charles, 219 F.3d 202 (2nd Cir. 2000) (“May the police constitutionally force an arrested person to undergo a staged “perp walk” for the benefit of the press, when the walk serves no other law enforcement purpose? We hold that such a staged perp walk exacerbates the seizure of the arrestee unreasonably and therefore violates the Fourth Amendment.” Id. at 203).

[27] See Bail in America: Unsafe, Unfair, Ineffective [infographic] (PJI). See generally Mark Mahoney, The Right to Present a Defense (2016).

[28] See John Logan Koepke and David G. Robinson, Zombie Predictions and the Future of Bail Reform, SSRN (2017).

[29] See, e.g., Mario Salas and Angela Ciolfi, Driven by Dollars: A State-By-State Analysis of Driver’s License Suspension Laws for Failure to Pay Court Debt (Legal Aid Justice Center 2017); Targeted Fines and Fees Against Communities of Color (U.S. Comm’n Civ. Rts. 2017); Ending Cash-Register Justice, N.Y. Times (Ed. Bd.), Oct. 17, 2017.

[30] See, e.g., Debra Cassens Weiss, Law Exempts Homeless, Disabled Woman from Paying $15 a Month in Court Costs, State High Court Rules, ABA J., Sept. 23, 2016 (discussing City of Richland v. Wakefield, 380 P.3d 459 (Wash. 2016)).

[31] See, e.g., Eli Hager, California Ends Practice of Billing Parents for Kids in Detention, Marshall Project, Oct. 11, 2017; Gretel Kauffman, Local Jail Fees Face Legal Challenges in Court, Christian Science Monitor, Dec. 27, 2016.

[32] See Kevin Johnson, Argument Preview: The Constitutionality of Mandatory and Lengthy Immigrant Detention Without a Bond Hearing, SCOTUSBlog, Sept. 26, 2017. See also Debra Cassens Weiss, Immigration Judges Have to Consider Ability to Pay in Setting Bond, 9th Circuit Rules, ABA J., Oct. 3, 2017; Lawsuit Challenges Unlawful Detention of Asylum-Seekers at Buffalo Immigration Jail, ACLU Press Release, Sept. 26, 2017.

[33] See generally Bail (NY CourtHelp).

[34] An important yet overlooked concern is “gap incarceration,” the void between arrest and arraignment. See Jauch v. Choctaw, No. 16-60690 (5th Cir. Oct. 24, 2017) (“Choctaw County’s relevant policymaker instituted a policy whereby certain arrestees were indefinitely detained without access to courts or the benefit of basic constitutional rights. This unconstitutional policy was “the moving force” behind Jauch’s constitutional injury. (citation omitted). Under Monell and its progeny, Choctaw County is liable.” Id.); Carimah Townes, Mississippi Woman Jailed 96 Days Without Attorney Has Fifth Circuit on Her Side, In Justice Today, Nov. 2, 2017. Unfortunately, anticipatory bail (or declaratory bail) in the United States is considered premature and not ripe for adjudication. See, e.g., In re Sturman, 604 F.Supp. 278 (1984) (“This motion presents a unique situation in which an individual, presumably to spare himself the embarrassment of an arrest, has asked a court even before an indictment has been returned against him to hold a bail bond hearing and set bail. This Court is not aware, nor has counsel for applicant, presented any precedent for such a request let alone cases in which a motion of this sort has been granted.” Id.). See generally F.E. Devine, Anticipatory Bail: An Indian Civil Liberties Innovation, 14 Int’l J. Comp. and Applied Crim. Just. 107 (1990); Anticipatory Bail (Wikipedia).

[35] See generally Data and Product Finder (BJS) (latest releases).

[36] N.B. Charitable Bail Act: Insurance Law § 6801 et seq. (NY 2012) and NYS Department of Financial Services.

[37] See generally Sixth Amendment Center (6AC); Right to Counsel National Campaign (R2C); H.R. 3811: National Center for the Right to Counsel Act.

Posted in: Civil Liberties, Court Resources, Criminal Law, Legal Research, United States Law
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