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he nearly ubiquitous use of money bail as a precondition for pretrial release undermines the legal profession’s commitment to the Constitution and contradicts the

core American justice values of fairness and accountability. Initially designed as a way to get defendants out of jail before trial, money bail has instead become a mechanism that all but ensures detention. Considering that pretrial defendants are constitutionally innocent at this stage, this situation is especially troubling.

Legal practitioners should be equally troubled, then, to learn that our jails, nationally, are two-thirds full of unconvicted individuals, most of whom are detained simply because they cannot afford small bail amounts—even though they pose little to no risk of flight or to public safety. As a result, many of these men and women suffer from a loss of employment, housing, and community connections—factors our systems work hard to restore later on. Detained pretrial defendants are also more likely to be convicted, incarcerated,

and incarcerated for longer than similar individuals who were released pretrial. Pretrial detention, or the threat of it, has also been blamed for excessive rates of guilty pleas. All of these consequences, taken together, contribute to our nation’s current crisis of mass incarceration.

The American Bar Association (ABA) has long recognized the seriousness of the pretrial stage of the criminal justice process. The ABA Standards for Criminal Justice: Pretrial Release state, in part: “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.” (Standard 10-1.1.)

The ABA has also shown a commitment to improving pretrial justice. The formation of the Pretrial Justice Committee in 2014 was a signal to the legal profession that pretrial is a critical stage where liberty is at jeopardy and that influences nearly every outcome downstream.

INITIATIVESIn recent years, the ABA has been joined by an energetic and broad-based movement that is seeking to restore core justice values and legal principles to the pretrial sphere. Several

PRETRIAL JUSTICE DEMANDS

LESS MONEY, MORE VALUES

BY CHERISE FANNO BURDEEN

t

CHERISE FANNO BURDEEN is the executive director of the Pretrial Justice Institute.

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(Federal Bail Procedures: Hearing Before the Subcomms. on Constitutional Rights and Improvements in Judicial Machinery of the S. Comm. on the Judiciary, 88th Cong., 2d Sess. (1964) (testimony of Robert F. Kennedy, Attorney General), available at http://tinyurl.com/hp7wkyt.)

Kennedy recognized how the unfair practice of money bail resulted in the disparate treatment of defendants based on access to money. He was instrumental in the passage of the Bail Reform Act of 1966—50 years ago this summer—which emphasized the presumption of release from custody before trial and steered courts away from the setting of money bail.

In this vein, the nonprofit civil rights law firm Equal Justice Under Law (EJUL) has successfully argued in a number of jurisdictions that preset bail schedules based on the criminal charge violate the equal protection clause of the Fourteenth Amendment. These cases have forced jurisdictions to change their bail-setting practices and, in some instances, to immediately release dozens of detainees. Former attorney general Eric Holder weighed in on one of these cases, stating, “Bail practices that are indifferent to an individual’s ability to pay are incompatible with our Constitution and contrary to our values.” (Press Release, DOJ, Department of Justice Files Statement of Interest in Clanton, Alabama, Bond Case (Feb. 13, 2015), http://tinyurl.com/zmgcz76.)

In late 2015, a settlement was reached in Varden v. City of Clanton—EJUL’s first bail case—requiring the city to quit using money bail, particularly secured money bail, as a condition of pretrial release. The Department of Justice (DOJ) issued a statement of interest in Varden, stating, “It is the position of the United States that, as courts have long recognized, any bail or bond scheme that mandates payment of pre-fixed amounts for different offenses in order to gain pre-trial release, without any regard for indigence, not only violates the Fourteenth Amendment’s Equal Protection Clause, but also constitutes bad public policy.” (Statement of Interest of the United States, Varden v. City of Clanton, No. 2:15-cv-00034-MHT-WC (M.D. Ala. Feb. 13, 2015).)

The “pre-fixed amounts” referred to in the DOJ’s statement are “bail schedules”—lists of dollar amounts associated with specific criminal charges. The use of “bail schedules” is common practice in courts across the country, despite the inherent failure to consider the circumstances of the alleged offense and the individual defendant’s characteristics or ability to pay, all of which are legal and evidence-based best practices for making pretrial detention decisions.

As EJUL builds a body of successful bail cases, it is likely that jurisdictions will make preemptive changes to avoid costly litigation and to realign their practice with legal and constitutional mandates.

Some outdated bail practice has been enshrined in law, creating roadblocks for those who seek to improve and modernize this area of criminal justice. In some states, a so-called “right to bail” is codified in the state constitution, making preventive detention of high-risk defendants

current justice improvement initiatives with federal and philanthropic funding are focused on or include reforming pretrial practices.

For example, the Bureau of Justice Assistance’s Smart Pretrial initiative is now in its second year, and the three participating sites—the City and County of Denver, Colorado; Yakima County, Washington; and the State of Delaware—have begun the implementation phase of the project, incorporating risk assessment and supervision strategies into pretrial practice. Based on the positive momentum of these sites, a call has been issued to secure future Smart Pretrial funding and to accept more sites. Similarly, the MacArthur Foundation’s Safety and Justice Challenge (SJC), launched in 2015, requires participating sites to change the ways they think about and utilize their jails, an exercise that invariably leads to addressing pretrial practices and policies. The SJC received nearly 200 applications for its 20 spaces, an indication of the immense interest in pretrial and “front-end” system reform.

Some of these initiatives can take advantage of the Laura and John Arnold Foundation’s research and development of pretrial risk assessment instruments. They have designed, tested, and pilot-tested risk tools in dozens of jurisdictions. The Arnold tools are based on extensive empirical testing and allow both large and small jurisdictions to incorporate risk-based decision making into their pretrial practice without having to devote time and resources to creating their own unique tools.

The Pretrial Justice Institute (PJI) has launched a state-based campaign to bring commonsense solutions to long-standing pretrial challenges, called 3DaysCount. Based on the fact that even a few days in jail before trial can put low-risk defendants at a higher risk of missing court or to public safety, 3DaysCount solutions are also grounded in public support. Opinion polling commissioned by PJI shows that voters support practices that reduce the number of people arrested and booked for low-level offenses, replace money with risk in the pretrial process, and allow for the outright pretrial detention of the most dangerous defendants based on risk. 3DaysCount will support 20 states to incorporate these improvements in the next four years.

CONSTITUTIONALITYCurrent practice that relies heavily on money-based pretrial decision making is not only ineffective and increasingly unpopular, but also almost certainly unconstitutional. Former attorney general Robert Kennedy recognized this in 1964 when he said:

Every year in this country, thousands of persons are kept in jail for weeks and even months following arrest. They are not yet proven guilty. They may be no more likely to flee than you or I. But, nonetheless, most of them stay in jail because, to be blunt, they cannot afford to pay for their freedom.

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difficult, if not impossible. In these places, judges are forced to set a high money bail amount and hope the defendant can’t make it. When the defendant can find the money—or a bail bondsman to take his or her business—potentially dangerous people return to the street, often without any supervision.

Similarly, some statutes require that money bail be set on nearly every charge without regard to risk level or a defendant’s ability to pay, forcing defendants to await trial behind bars, plead guilty with the hope of receiving time served—regardless of actual guilt—or seek the often-predatory services of a for-profit bail bondsman.

JURISDICTIONSSome jurisdictions have changed their practice to avoid the costly and unfair effects of money bail.

The District of Columbia has long operated a successful pretrial system by incorporating policies and practices that can be applied to any local or state jurisdiction. Of supreme importance in D.C. is a single line of a statute prohibiting judicial officers from imposing any financial condition that results in the detention of the defendant. (See d.c. code § 23-1321(c)(3).) Because the vast majority of criminal defendants in D.C.—and nationally—are poor, the courts have found it simpler to release nearly every defendant with nonfinancial conditions. As judges in D.C. are fond of saying, there is no one sleeping in a D.C. jail tonight because he or she is too poor to pay bail.

The D.C. system functions well without financial release conditions in part because it also incorporates locally validated risk assessment, robust pretrial services, and

transparent preventive detention. Voter-approved legislation in 2014 has brought New Jersey closer to the D.C. system. The state still allows for money-based detention, but the new laws and a constitutional amendment will create pretrial service agencies that will assess the risk of arrested individuals, provide supervision, if necessary, and allow judges to detain the highest-risk defendants without an opportunity for release. New Jersey’s bail reform legislation was successful because of a growing awareness that too many low-risk defendants stay behind bars because they are poor while too many dangerous defendants exploit the money bail system and are released with little to no supervision.

VALUESThe initiatives, constitutional arguments, and model practices discussed above are all tethered to ideals of American justice that include the presumption of innocence and individualized and fair treatment, and that shun outcomes linked to wealth, class, or race. Pretrial justice in the United States—currently, and for many decades—has drifted away from these values. The work going on now across the country is an effort to realign practice with the values we all agree should define our justice systems.

As the embodiment of the legal community, the ABA should continue to use its influence and authority to move our nation’s pretrial systems closer to the vision of Robert Kennedy. The result would be pretrial practice that not only better meets the demands of the law and the values we profess, but that also is supported by experts, practitioners, and the public. n