Re-Thinking Bail

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On Valentine’s Day, South African Olympic runner Oscar Pistorius shot his girlfriend Reeva Steenkamp four times through a bathroom door, killing her. The police arrested Pistorius almost immediately and charged him with murder.

Within a week, a tremendous amount of information about the events of that night was revealed in court. Evidence was presented, witnesses testified, theories were posited and statements were read.

What makes these events unusual is that they occurred during a bail hearing.

When someone is arrested for a serious felony, one of the first bones of contention between the defense and prosecution is often the issue of bail—should the defendant get bail and, if so, how much?

According to a CNN interview of James Grant, a senior lecturer in criminal law and evidence at the University of the Witwatersrand, there’s only one type of murder charge in South Africa’s legal system and it doesn’t require premeditation.

However, the issue of premeditation is relevant to bail.

Grant explained that if the defendant is accused of committing premeditated murder, the defense must show “exceptional circumstances” to get bail. If the defense is able to do so, the prosecution must then demonstrate that the defendant is a flight risk or has a propensity toward violence for bail to be denied.

As a result of this burden on the Pistorius defense team, a lot more detail came out in this bail hearing than usually does in a bail hearing in the U.S., even in a similarly high profile case.

When I was an assistant district attorney making bail arguments, the focus was on whether the defendant was a flight risk. For example, I’d look at his criminal record, if any, specifically for “bench warrants,” which are issued when defendants fail to appear in court.

I’d also look at the seriousness of the charges, the idea being that a defendant is more likely not to return to court if he faces a long jail sentence. For the same reason, I’d look at the strength of the case against the defendant because he’s more likely to flee if the odds of his winning are poor.

In turn, the defense would argue that, say, the case was weak and the defendant likely to prevail so he has no motive to abscond. These arguments were typically made quickly, with little fanfare and no actual presentation of evidence.

But many people associated with the criminal justice system in the U.S. believe that the whole bail process needs to be reformed.

For example, a week before Steenkamp’s murder, Jonathan Lippman, the chief judge of the New York court system, proposed changes to the state’s bail system. He raised several concerns.

First, Lippman argued that the current bail system was stacked against the poor and those charged with minor offenses, who couldn’t make even relatively low bail amounts. And bail bondsmen typically ignored such defendants because their fees are based on a percentage of the total bail. As a result, the defendants were stuck in jail, “weakening their resolve in plea negotiations,” said Lippman.

Second, the system fails to let judges consider public safety when setting bail, claims Lippman. Thus, he argues, the safety of the general public is put at risk.

Lippman proposed that the bail analysis shift the focus to public safety and away from the defendant’s financial status. He also suggested taking “the profit motive” out of bail bonding by encouraging more involvement by nonprofit organizations. And he called for the expansion of supervised release programs.

Last February, Leigh I. Saufley, chief judge of the Maine Supreme Judicial Court, announced changes to the bail rules for domestic violence cases. Bail commissioners can no longer set bail in such cases unless they have access to the defendant’s criminal record in the state.

Lippman and Saufley aren’t alone in trying to reform the bail system in the U.S. The Conference of Chief Justices recently made similar proposals for bail reform.

Instead of just relying on a fixed bond schedule, the group recommends that judges reviewing new arrests use an evidence-based assessment of whether the defendant will be a danger to the community and is likely to show up in court.

It also suggests that judges start with the presumption that defendants in non-violent cases will get bail unless it’s proven they’d be a danger or flight risk.

In the Conference’s resolution, it endorsed a paper by the Conference of State Court Administrators, which argues that an evidence-based assessment of the risk that an individual defendant will fail to appear or endanger others would reduce pretrial detention without impairing the judicial system or threatening public safety.

In addition to the other concerns raised about the current bail system, the paper notes that pretrial incarceration imposes a significant financial burden on taxpayer-funded jails.

Similarly, in March 2012, the Pretrial Justice Institute released a paper advocating a movement from a cash-based bail decision-making process to one based on risk assessments.

The paper’s conclusion sums up the current system and its impact well:

“Mass incarceration numbs both society and the defendants themselves to incarceration. Rather than being a last resort, the decision to lock someone up is a casual one, made with little regard for the costs involved or whether less restrictive—and less expensive—measures are available.

“Being a casual decision, few really notice when a judge sets the price for a particular defendant’s release from jail at $1,000, and few pay any attention to whether that price is paid.”

The media and the general public generally don’t pay a lot of attention to the issue of bail—that is, until a defendant out on bail commits a heinous crime.

For example, earlier this year, Andrew Britt was arrested in Massachusetts for stabbing a bartender. While out on bail, he allegedly shot and killed another man. He was not granted bail in that case.

Although such cases grab all the attention, they’re just a small aspect of a bigger problem with how bail decisions are currently made. It’s clear that participants in the system realize that changes need to be made.

We’ll have to wait and see if those changes are actually implemented— and whether they improve the bail system for everyone.

Robin L. Barton, a legal journalist based in Brooklyn, NY, is a former assistant district attorney in the Manhattan District Attorney’s Office and a regular blogger for The Crime Report. She welcomes readers’ comments.

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