Does the Current Bail System Penalize the Poor?

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Michele Hanisee

Michele Hanisee

The Obama Administration has again challenged the bail system, asserting in an amicus brief in a Georgia case that fixed bail schedules, which don’t account for the ability to pay, are unconstitutional.

This position was most recently asserted in an amicus brief filing in a case in Georgia.  A  previous blog from the Association of Los Angeles District Attorneys observed that a lawsuit in California is also challenging the bail system, although that lawsuit was denied class action status and an injunction earlier this year by a federal judge who issued a scathing decision.

Setting bail for those facing criminal charges is undoubtedly constitutional, as the 8th Amendment only prohibits “excessive bail.”  In addition, the United States Supreme Court approved holding a person pre-trial without bail in a 1987 case, United States v Salerno.

The Obama Administration now seeks to challenge the bail requirement for indigent defendants as a violation of the 14th Amendment.  However, as law professor Stephanos Bibas commented to the Los Angeles Times, the Supreme Court has not previously ruled that the equal protection clause forbids policies which may discriminate against the poor.

In California, Penal Code Section 1269c requires judges in each county to meet yearly and set a uniform bail schedule for that county.  This schedule is used by police to set bail for persons booked into custody following arrest.  If the arrestee does not bail out, he or she must appear for arraignment before a judge within 48 hours.  Once the person appears in court, the judge can consider the crime charged, criminal history of the arrestee and any prior failures to appear in setting bail.

The determination of the judge is not final.  The arrestee may request an additional hearing at which the arrestee is permitted to provide additional facts to challenge the bail amount.

The need for bail as a means to ensure appearances in court is readily apparent.  Some could argue that the current bail system does not penalize the poor, it targets the rich.  Judges routinely change bail amounts to reflect the wealth of a defendant.  For example, a very wealthy person charged with a violent crime will see bail often increased to reflect the fact that the standard bail amount is a less meaningful incentive to appear in court than it would be to the average person charged with a crime.

If there is any doubt that not requiring bail leads to failures to appear in court, consider the impact of Proposition 47.  In California, those arrested for misdemeanor offenses are rarely held pre-trial, instead usually being cited and released to appear in court at a later date.

When Prop. 47 reduced a significant number of felony offenses to misdemeanors, one of the early impacts was that failures to appear in court soared in 40 of the 58 counties surveyed earlier this year.  In Monterey County, there was a 33% increase in failures to appear for misdemeanor offense following the passage of Prop 47.  As a newspaper editorial noted, these criminals are not only failing to make their court dates; they aren’t getting drug treatment either.

If the Obama Administration position calling for the abolition of fixed bail schedules were to be adopted, the consequences in California would be significant. No longer could arrestees on felony offenses be booked into jail without appearing before a judge or commissioner.

Instead, those arrestees would have to appear before a judge or commissioner prior to being booked in jail, with a Deputy District Attorney and defense attorney required to be present at that hearing. Since arrests occur day and night 365 days a year, that means courtrooms opens 24 hours a day, 365 days a year, to conduct bail hearings, staffed by a judicial officer, court staff, deputy sheriff’s,  a prosecutor and defense attorney.  Since arrest reports would not have been written, the arresting officer would have to be present to give a probable cause declaration.

The case study cited by DOJ as an example of abusive practices was based upon an the arrest of an individual for a misdemeanor offense in Calhoun, Georgia — a town so small that court was only in session once a week.  Never mind that Calhoun’s practice of holding individuals in custody for over 72 hours most likely violated other constitutional rights.  The focus was the $160 bond required for release before the arrestee’s first appearance in court.  By contrast, the California Penal Code requires that all arrested persons be brought before the court within 48 hours (weekends excepted).

The Obama Administration’s argument that all pre-appearance fixed bail schedules are unconstitutional on their face is unfounded, and if adopted would impose great financial costs upon California counties, not to mention the public safety implications.

As is typical with “reformers,” the Justice Department’s brief offers criticism, but little in the way of workable solutions.  For example, the current bail in Los Angeles for the crime of murder is $2 million. If an indigent homeless person commits murder, is the Department of Justice suggesting that the bail should be reduced to, say, $100 or some similarly insignificant amount?

The assertion that it is unfair to detain a person charged with a crime pre-trial based “solely” on his or her inability to pay bail begs the question: Who would be in custody if they could pay the bond?

Every single person charged with a crime in California who is in custody pending arraignment or trial (other than those charged with capital murder which carries no bail) is there because the bail was set at an amount they were unable to pay.

The use of fixed bail schedules in California post-arrest, and before arraignment, is both respectful of public safety and an arrestee’s constitutional right.  We await the decision of the 11th Circuit Court of Appeals and perhaps the United States Supreme Court for the final word.

Michele Hanisee is President of the Association of Los Angeles Deputy District Attorneys. The Association of Deputy District Attorneys (ADDA), representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles. A version of the above essay was published earlier on the ADDA website. To contact a Board Member, click here. Readers comments are welcome.


6 thoughts on “Does the Current Bail System Penalize the Poor?

  1. How surprising: a Deputy DA thinks the bail system is fair. That couldn’t be because the vast majority of guilty pleas on felonies extorted by The government are when people who really want to fight their cases cannot do so effectively because they’re locked up. Deputy DAs like this author routinely exaggerate defendants’ criminal histories to make sure they cannot bail out. They also routinely overcharge people so the bail will be set higher. When people do bail out, they file “source of bail” motions to get bail revoked, they add charges to increase bail and they go out of their way to ensure that poor defendants are in jail. I am a criminal defense attorney in Los Angeles County. I was a Deputy DA in LA and received the same training this author did about how to make sure poor people sit in jail and don’t fight their cases. This article is pathetic.

  2. Finally some common sense about bail reform. People who in jail are not victims. They are not locked up in jail because they are poor. They are there because they are accused of a crime. Anyone who has no priors and who is not violent is already let out of jail on their own recognizance…especially in California where everyone is let out. To say that jails are overcrowded because people cant afford bail is simply false. According to a 2013 study by the JFA Institute and funded by the ACLU, it was determined that only 12.9% of defendants who are in jail pretrial are actually bailable. Not 70% as claimed by those who support bail reform. In New Mexico, the % of defendants that are bailable is even less at 5%. The remaining individuals are not eligible for bail because of immigration holds, probation violations, waiting transfers to other facilities, etc.. To say that these people are there because they can’t afford a bail bond is misleading and wrong. There are definitely a lot of problems in our criminal justice system. Things like speedy trial, drug and alcohol treatment, recidivism, etc. are all problems that need to be addressed. To focus and put a target on the commercial bail industry as the cause of these problems is absurd. Instead of trying to put an effective industry out of business, maybe its time these advocates focus on addressing these real problems and maybe even better, keeping these people out of jail in the first place through better education and stronger families. But unfortunately that is not an issue people like to address….so instead get rid of the evil bail bondsman. It is time for common sense and real criminal justice reform. Ms. Hanisee is spot on and finally calling bail reform for what it really is…a misguided attempt by advocates that fully dont understand the real problems. Great job.

  3. Great article!
    All I keep reading about is from bail reform advocates that want to adopt some type of government supervision system paid for by taxpayers. Basically law enforcement write tickets for crimes and hope that a system of phone calls will encourage the accused to appear in court? Whereas the current bail system requires a friend or family member to pay for the bail cost and “vouch” for the individual thereby creating a network of people assuring the defendant goes to court. A monetary incentive payable to the courts by the bondsman and bond guarantors appears much more likely to induce court compliance than a phone call…. and when the defendant fails to appear and taxpayers foot the cost for a courtroom full of attorneys, judge, witnesses, and victims ….. all except the defendant …. does the court issue another ticket pleading for the defendant to appear because we cannot incarcerate the individual and raise the bail ?
    Maybe a person incarcerated that cannot get out of jail because they cannot raise bail is there because they have burned all of their friends and family and they feel staying in jail to await trial is the best thing for the individual.
    Of course people that are wealthier are more likely to get released on bail and not be convicted of a crime ….. This is often because they can afford a private attorney as opposed to an overworked public defender. As long as bail reformers want to get rid of the cash bail system they should make all legal representation free also. I would think the level of a person’s legal representation is a much stronger determination of the “fairness” of the criminal justice system.

  4. I completely agree with Jason. When Oregon abolished bail in 1974 they said there deposit bail system would be so great that eventually every State would adopt it. Not only did over crowding soar but so did the failure to appear rate. All this on the back of the tax payers who in my opinion should not be financially burdened by criminals. And no big shock but no other State since 1974 has abolished bail.

  5. The problem with the DOJ brief is that it discusses bail universally for all crime, then uses as examples of unfair bail some cases involving petty crimes and infractions. Those types of crime don’t really pose a public safety concern. They fail to address how this proposal will apply to violent and recidivist criminals like rapists, child molesters and murderers. The suggestion that bail should be based upon ability to pay would mean that a murderer would have to be given a bail amount that they COULD pay. How do the proponents of “affordable” bail suggest that bail be set for violent crimes where the accused has a high incentive to flee the jurisdiction? That is the real question.

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