The Department of Justice did something groundbreaking last week: It declared our nation’s bail system unconstitutional. In a brief filed in support of a class-action lawsuit challenging the bail system, the DOJ held that jailing people who are facing charges unless they can afford to post bail impermissibly discriminates against the poor.

As a public defender in Oakland, I know all too well how much our bail systems are used as a way to lock up the poor while allowing the wealthy to avoid jail. Every day, I see jails full of people who would be free if they simply had a few more dollars to post bail. Our nation’s bail system allows those with money to buy their way to freedom while others sit in cells simply because they are poor.

The bail system is founded on a simple but flawed concept: People need a monetary incentive to ensure they return to court. When someone comes to court after being arrested, a judge reviews the charges, the person’s prior convictions, the person’s likelihood of fleeing, and any public safety risks, and then decides whether to release the person on his own promise to return to court, whether to deny bail altogether, or whether to grant bail. If bail is set, an accused person can post cash to get out of jail, and so long as he makes his court appearances, he will get the money back at the end of the case.

Of course, most people don’t have large sums of money readily available to post bail. As a result, in many parts of the country those in jail rely on the commercial bond industry. A bondsman will post bail on someone’s behalf but will charge 10 percent of the total amount even if the person beats the case.

And there are many people who cannot afford even the bail bondsman’s 10 percent rate — and so must stay in jail for days or weeks as they await trial. Today there are almost 750,000 people in local jails (not prisons), most of whom are awaiting trial. Our jails swell with poor people never convicted of anything.

“Jane”: A case study in how the bail system hurts poor people

Let me tell you a story about a former client of mine, whom I will call Jane (not her real name; although she has given me permission to share her story, I have changed all names and some identifying details). Jane was dating a man who, unbeknownst to her, was married. Late one night, Jane was at her boyfriend Bob’s home when he left on an errand. Moments later, Jane heard pounding on the door and windows, and screams outside the house.

The terrified Jane grabbed a knife to protect herself. She heard a window break and people outside. When she opened the door, two women angrily confronted her in the dark. “Who are you?” one of them demanded. “I’m Bob’s girlfriend,” Jane explained. “Well, I’m his wife!” the woman responded. A violent fight broke out — Jane claimed the two women attacked her first, and they claimed she attacked them — and things got bloody.

Jane had a great self-defense case. Although there was dispute over who started the fight, Jane was the one alone and inside when multiple people confronted her in the dark after banging on the doors. There was a great deal of helpful evidence on Jane’s behalf, including the fact that she was the one to run out to a neighbor’s house to call 911.

Jane’s family was able to post her bail of $35,000 for her with a bond agency early in her case. But a judge then raised her bail after the prosecutor pointed out that the alleged victim’s injuries were severe. Jane was taken back into jail, where I met her for the first time. I could only talk to her through a glass wall.

Jane was devastated by her arrest. She was set to graduate from adult school in a few weeks, and she had an 8-year-old daughter to whom she was desperate to get home. But her family simply could not afford the new bail amount of $130,000.

Because Jane was eager to get out of jail as soon as possible, she was adamant about moving the case along as quickly as possible. So we set it for a speedy preliminary hearing. Jane stayed in custody as we fought the case aggressively at a preliminary hearing with the information my investigator had gathered quickly. Jane sat next to me at the hearing, wearing a jail jumpsuit. After the hearing, in which a judge found enough evidence to set her case for trial, Jane wanted to continue to fight her case. Yet just a few weeks after the hearing, a prosecutor offered her a deal: Plead guilty and get out of jail immediately.

Jane faced two choices. She could get out of jail right away by pleading guilty to a crime she knew she did not commit — and which she was confident she could win at trial. Or she could fight the case and stay in jail for months until her case could go to trial. The choice was simple for her — she chose the route that would get her back right away to her daughter and home and school.

As a result, she not only has a felony on her record but is on felony probation, which means she is vulnerable to being sent to state prison if a judge (without a jury) finds that there is even just a 51 percent chance (a much lower standard than the “beyond a reasonable doubt” standard) that she had violated probation in any way, no matter how minor.

“Joan”: A case study in how a middle-class person can navigate the bail system just fine

Now imagine a very different story: the story of a hypothetical client I will call Joan (a composite drawn from numerous cases). Joan was involved in an incident nearly identical to Jane’s. But Joan is from a middle-class family that was able to come up with the money to post bail. When the judge later raised her bail because of the severe injuries, Joan agreed to pay for an ankle monitor to allow her to remain out of jail, rather than posting more money. The monitor cost $20 a day, which Joan could afford.

Since Joan was out of jail and there was a great deal of investigation to do, she and her lawyer decided at her first court date to waive her right to a speedy preliminary hearing until they had all the necessary information. They also set up a meeting to talk about the case and her options, and to visit the scene of the crime together.

Meanwhile, Joan went back to school. Just a month after her arrest, she received her high school degree. Her lawyer brought to court photographs of the smiling Joan in her cap and gown hugging her daughter while holding her diploma. Upon her lawyer’s recommendation, Joan also began doing community service. She began looking for a full-time job now that she had her degree.

Meanwhile, the investigator had located a neighbor of Bob’s, who had a surveillance camera that caught part of the incident. It captured the two women pounding on the door for what turned out to be 15 full minutes.

Joan came to court dressed in a suit for her next court date. She handed her lawyer a stack of character letters, all of them describing her as a wonderful community member. There was one from her daughter’s teacher, one from her pastor, and even one from an ex-boyfriend, who talked about how he never saw Joan display any violence in her life.

Her lawyer showed the prosecutor the letters and the video, but the prosecutor still wanted Joan to plead to a felony. He offered her a felony with no jail time, but Joan wasn’t interested. “I can’t have a felony on my record. I am looking for a job,” she explained. Her lawyer set the case for another court date to try again.

Meanwhile, Joan continued to thrive and her lawyer continued to build her defense. The defense investigator had finally succeeded in locating Bob, who had been dodging her, and he admitted that he had invited Joan over that night. He provided a helpful statement, which the defense turned over to the prosecutor. The investigator also secured a statement from the neighbor who had called 911. He stated that he’d observed on numerous occasions that Bob’s wife had a violent temper.

At the next court date, based on the new information, the prosecutor offered Joan a misdemeanor with no jail time. Joan turned down the offer, and her lawyer set the case for a preliminary hearing. At the hearing, her attorney was able to attack the prosecution evidence with the information she’d gathered. Although a judge did find enough evidence to go forward with the case, he made a long record about what a close call it was and how it seemed like it could have been self-defense. The case was set for trial.

Meanwhile, Joan had gotten a full-time job, and her employer submitted a character letter for her. On the day of trial, the prosecutor agreed to allow her to attend some anger management classes and then have her case dismissed in one year if she stayed out of trouble. A year later, Joan’s record was clean.

Although Joan is not a real person but a composite of many of my clients who fought their cases out of jail because they could afford to post bail (or were released on their own by a judge), the contrast between Jane and Joan is real. The only difference between them is money. Every day, innocent people plead guilty simply because they cannot afford bail. Every day, people who are out of jail get better plea deals than people in jail. Every day, people with money receive better results from the criminal justice system than do the poor.

The different outcomes of Jane and Joan can be blamed on our country’s bail system.

Bail is not the only way to prevent an accused person from fleeing

If bail is truly designed to prevent an accused person from fleeing, there are far more efficient and equitable ways to do so. After all, some places, like Washington, DC, have almost eliminated monetary bail altogether. Instead, a pretrial services program evaluates individual risk levels and decides what kind of supervision to provide to ensure someone returns to court.

For example, if someone is deemed a flight risk, he can be ordered to wear an ankle monitor, which will track his location with far more precision than just seeing if he appears on the day of court. Ankle monitors — which in Oakland cost around $20 to $30 a day — are far less costly than incarceration; in Alameda County, it costs an average of more than $142 a day to jail someone. And electronic monitors carry the added advantage of alerting the system to someone skipping town immediately — as opposed to having to wait until a next court date to see if an accused appears.

The truth is if someone is looking to flee, he is probably going to flee regardless of whether there is money at stake. Indeed, for someone with a lot of money, the money posted for bail may be insignificant. For another who struggled to post bail through a bondsman, he probably wouldn’t be able to pay the bondsman the remaining 90 percent of the bond anyway, even if he did skip town, so even if the bondsman comes after him for the rest of the money, it will be difficult to recover it from someone with nothing.

Indeed, it is not as though the only consequence of missing court is forfeiting one’s bail. When someone misses court or flees an area, a judge not only places a warrant out for his arrest but that person can be charged with a new crime for failing to appear in court, or absconding. Certainly the threat of having to do jail time and facing a new charge is far worse than losing money. So it is clear that bail isn’t really about ensuring court appearances.

But even if one believes money can be a sufficient incentive to get people to court, how do we justify a system that sets standard bail without considering a person’s actual ability to pay? If we want to set bail amounts based on the nature of a person’s criminal history and the severity of the charged offense, why not tie those factors to a percentage of someone’s assets and income, rather than on a static number? Instead of establishing one amount of bail per crime, we should do an evaluation of what percentage of that person’s income provides sufficient incentive to come to court.

Sure, there are some crimes (like murder) that society may determine should never merit bail, regardless of income. But for most crimes, don’t two people with identical criminal histories and charges who only differ based on their economic statuses deserve different bail amounts? If Jane had a total income of $20,000 and Joan had an income of $200,000, wouldn’t it be far more equitable — as well as effective — to set bail at $2,000 for Jane and $20,000 for Joan than to set it at $20,000 for each of them?

By establishing a one-size-fits-all bail system, what we have really done is set up a one-size-fits-the-rich system, whereby those with money have little difficulty posting bail, while the poor have no ability to pay and are trapped in jails as a result. If we really believe people need a financial incentive to come to court and want to ensure that all people have an interest in returning to court, a proportionate bail system would be the answer.

Our bail system perpetuates our nation’s war on poor people

What becomes painfully clear from looking at our bail system is that it is not designed to be either efficient or fair. Instead, our bail system exists as a way to perpetuate our nation’s war on poor people. Our criminal justice system “trusts” the wealthy more and gives them benefits my clients never see. Chief among them is the farce of a fair and equal bail system that ultimately lets the wealthy out of jail for nearly all but the most serious crimes, while poor people remain in jail for even the most minor ones.

What makes this all the more infuriating is that the right to be free from “excessive bail” is so fundamental to our nation’s values that our founders included it in our Bill of Rights. How did we get to a place so far from what our founders envisioned?

This year marks 40 years since the passage of the 1966 Bail Reform Act, which was intended to ensure that the criminal justice system didn’t jail people facing charges simply because they were poor. The bill shifted the factors federal judges considered in setting bail and created a presumption that those charged with non-capital offenses should be released. If a judge determined that the person needed additional incentives to come to court, the judge could impose additional conditions designed to ensure attendance in court.

Yet the 1970 and ’80s brought with them heightened fear of crime, and in 1984 a new federal bail reform bill passed, this time allowing judges more leeway to consider things like “community safety” in setting bail or even denying bail altogether. The bill changed the presumption away from release in certain offenses and led to increased bail for many people. Meanwhile, each of the 50 states developed their own vastly different approaches to bail, ranging from cash bail systems to bondsmen-centered industries to the DC. approach that barely uses bail at all.

Why we need to get rid of our bail system altogether

Forty years after the Bail Reform Act, the DOJ’s powerful statement against the bail system is mobilizing a new push for bail reform. But we need to go further than reform. We need to eliminate our bail system altogether.

By eliminating our bail system, we need to create a presumption of release for those arrested for all but the most serious offenses. To support that release, we need rigorous and well-resourced pretrial services agencies whose sole task is ensuring that the accused show up in court. Well-funded pretrial service programs — like those used in DC — can best evaluate individuals charged with offenses and determine what those individuals need to return to court.

Some will need little incentive to return, and a gathering of some contact information in case they miss court will suffice. Others may require an assigned pretrial services employee to monitor them regularly and check in to ensure they are attending required programs or classes while their case is pending. Still others may compel electronic monitoring so that the courts can keep close tabs on them as their case progresses.

The focus, however, needs to be not on imposing requirements for the sake of them (after all, these are people who have not been found guilty of any crime, so punitive requirements are inappropriate) but on meeting each individual’s needs to get them back to court. To do this successfully, pretrial service programs need to be well-staffed and well-resourced, with the focus always on helping people make their court dates and not on burdening them with unnecessary requirements.

Although this dramatic change would require a great deal of upfront costs, the success of DC’s program demonstrates it is well worth it. Since DC instituted its pretrial services program in the 1990s, about 90 percent of those facing charges show up to their court dates and 98 percent avoid any arrests for violent offenses while their cases are pending.

And DC has saved close to $400 million a year by avoiding jailing costs for those who are facing charges. Indeed, these kinds of pretrial services programs may even prevent future crime by connecting people to housing and treatment that make them less likely to commit future offenses.

Robert F. Kennedy (who was United States attorney general at the time) named our current problem back in 1964, when he testified, “The rich man and the poor man do not receive equal justice in our courts. And in no area is this more evident than in the matter of bail.” As Kennedy said, “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.”

Forty years later, not enough has changed, and my clients remain in jail simply for being poor. Yet the DOJ’s briefing is a huge step toward progress in the area of bail. Let’s embrace their call for radical change and push for the elimination of bail altogether. It’s time to start a real war on poverty — and end the war on the poor.

Rachel Marshall is a public defender in Oakland, California, where she handles felony cases. She graduated from Brown University and Stanford Law School.

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