Should poverty keep a citizen in jail after an arrest but before conviction, even if the defendant poses no further risk of harm or flight?
There is a push on to change the way bail works so that it's less punishing to the poor. The Connecticut legislature passed a bill (at the governor's urging) last week to make bail less oppressive. A measure in California is temporarily stalled while opposing sides hammer out details.
The conflict pits civil rights and criminal justice reform advocates against law-and-order politicians who campaign on tough stances and the bail industry which is financially dependent on the revenue generated by the bail process.
After some compromise with the bail industry in Connecticut, Democratic Gov. Dannel Malloy has ushered in modest reforms. Connecticut's bill bars judges from setting cash-only bail and restricts judges from setting bail in many misdemeanor cases, though they can do so for those with a history of not showing up in court or who are flight risks. The law also attempts to hasten the timeframe for bail review hearings, attempting to cut the deadline from 30 to 14 days, so indigent defendants are not stuck in jail as long.
Malloy has noted that when poor people are stuck in jail cells solely for having been arrested, it can have huge impacts on their livelihoods, even before they've been convicted or even tried for any crimes:
"The fact is that being incarcerated for as few as a couple of days can have a dramatic effect on that person's ability to maintain housing, employment, and contact with their family – all of which are keys to ensuring people lead productive lives and that the cycle of crime and poverty does not perpetuate. This legislation builds upon our dramatic successes in leading the nation towards creating a fairer and more just criminal justice system."
Even broader bail reform legislation passed California's Senate but has been held up in the state's Assembly after significant resistance from some legislators and heavy lobbying from the prison industry.
The California bill would introduce a county-level pretrial service that would evaluate and help courts determine which criminal defendants are actual flight risks and attempt to create a system through which people are not stuck in jail awaiting trial because they cannot afford to pay bail. The goal: Get nonviolent offenders back home and reduce chances they lose their jobs, housing or face other negative consequences simply because they are merely accused of crimes.
Such a change necessarily means an industry dependent on people seeking out financial assistance to make bail is going to take a hit. And they're not remaining quiet about it. According to KQED, insurance companies for the bail industry have spent more than $170,000 lobbying lawmakers over the past few months. While debating the bill, Sen. Jeff Stone (R-Temecula) warned that people would lose their jobs, and reducing bail demands would "decimate an industry dominated by women and minority owners, and it will cost the state millions of dollars annually in lost taxes."
Stone's complaint that defendants should be forced to seek out bail or rot in prison cells in order to keep people in the bail industry employed may not be a particularly compelling argument to many, but California lawmakers do seem concerned about costs. The California Assembly's analysis of the legislation notes that it's going to impose hundreds of millions in costs to create these new county-level pretrial services that the state will be obligated to fund. Yet the analysts don't seem to be able to put any sort of price tag on how much counties will save by having fewer people in their jail cells, labeling the prospect as "unknown but significant."
Connecticut is calculating its more modest bail reform will save the state $30 million over two fiscal years.
In California, nearly 60 percent of people awaiting trial are behind bars, according to statistics provided by the American Civil Liberties Union's Northern California chapter. Margaret Dooley-Sammuli, the criminal justice and drug policy director for California's chapter of the ACLU, is optimistic California bail reform will pass, despite the setback in the Assembly.
The bill will likely be amended and compromises worked out, as happened in Connecticut. Given the size of California, the number of people who could be affected, and the extensive changes, Dooley-Sammuli, says she wants the state to get the reforms right.
"This reform really needs to work," Dooley-Sammuli tells Reason. "It's not just that we need to live up to our ideals. The question is how exactly does it need to work for courts and for law enforcement. There are various day-to-day questions of who is going to be in charge of what."
Dooley-Sammuli points to examples in California (Santa Clara County) and in the State of Kentucky where the goal is to find alternative ways to make sure defendants show up for court. Part of the solution is often just communication, she explains.
Making sure defendants know when they're supposed to appear in court via text messages or phone calls (as opposed to sending letters) or making defendants call in or report in regularly can help increase the chance that he or she doesn't get into further trouble. The ACLU notes that Kentucky releases about 70 percent of those awaiting trial, and 90 percent of those people make all future court dates.
California and Connecticut are not the only states considering reforms to bail systems and the ACLU is not the only group pushing for changes. Lawmakers in Hawaii, Indiana, Mississippi, and others have considered bills to find ways to loosen the chains on those who are merely charged with crimes. A great source on relevant legislation is actually the bail bond insurance industry itself. American Surety Company keeps track of pending bail-related legislation across the country here.
Dooley-Sammuli sees California as a "bellwether" determining whether these reforms will move forward. Its success may depend on whether this push in recent years for scaling back on the desire to incarcerate people can be sustained.
"We've become part of some kind of national awakening on this," she says. "In recent years the focus on the way that people are made to pay through the justice system and being punished for being unable to pay has drawn attention to this."