A series of victories for advocates reflects a shift in the ‘popular narrative’ around bail.
Roughly 482,000 people are held in jails across the country each night awaiting trial, many because they are too poor to pay their way out. In recent years, criminal justice reformers and activists have set their sights on ending the cash bail system, arguing it has created a two-tiered justice system. And increasingly, their work is paying off. In recent weeks, they’ve won court battles that have chipped away at the country’s reliance on cash bail as a condition of pretrial release.
Elected judges are responding to pressure from activists, who raised awareness about the harms of cash bail through protest and mass bailouts, and by enlisting prominent advocates, attorneys told The Appeal.
“The courts themselves have been aware of the money bail system for decades. They’ve been using it. They’ve been the ones inflicting the pain on people,” said Alec Karakatsanis, executive director of Civil Rights Corps, a nonprofit that challenges inequity in the legal system. “So it’s only the result of a big shift in the popular narrative that has made people understand how unfair and unjust and irrational it is to make decisions about who’s in a jail cell and who’s with their family based on who has access to money.”
Since June, courts have ordered that defendants be provided with attorneys at their bail-setting hearings, have ruled that judges can’t profit off bail payments, and have dismantled bail schemes from the ground up. Here’s a look at the reforms:
On Sept. 11, a federal judge issued a temporary injunction in an ongoing lawsuit over the cash bail system in Galveston County, Texas, ruling that people have a right to defense counsel at their initial court appearances when bail is set.
The case revolved around Aaron Booth, 36, who was arrested for felony drug possession in 2018 and detained at the Galveston County Jail because he couldn’t afford bail. According to the complaint, no attorney was present during his bail hearing so his inability to pay was never raised.
District Attorney Jack Roady’s office and magistrate judges in the state argued that the injunction was “impermissible and unjustified expansion of the Sixth Amendment.” Felony judges asked the court to delay the order to avoid chaos in the courts, but the federal judge denied the request.
As a result of the injunction, attorneys for poor arrestees will be able to argue for release, challenge any potential finding of probable cause, and help arrestees secure evidence.
“These are all of the things that need to happen immediately in a criminal case that you are far more likely to see the benefits of if you have a lawyer with you,” said Twyla Carter, a senior staff attorney for the ACLU’s Criminal Law Reform Project who is part of the team representing the plaintiffs in the litigation.
Studies show that the presence of an attorney at a bail-setting hearing increases the likelihood an individual will be released on their own recognizance, the bail amount will be lower, and they will not be jailed pending disposition of their case. Given that initial bail hearings are often very short and judges have little time to consider each case, it’s difficult for a defendant to effectively advocate for themselves. Judges’ racial biases may also come into play and affect bail decisions.
“It should shock absolutely nobody that the failure to have counsel during an initial bail hearing, when a critical decision is made concerning pretrial release, leads to concrete harm in the form of outcomes that are far worse than if counsel were provided,” Magistrate Judge Andrew Edison wrote in a recommendation last month that was adopted by U.S. District Judge George Hanks when he issued the injunction.
The injunction in Galveston isn’t the only recent example of court-ordered bail reform in Texas. In September, a federal judge approved a settlement between officials in Harris County, home to Houston, and arrestees who had filed a federal lawsuit over the county’s bail practices.
The decision stemmed from a 2017 ruling that found the county’s bail practices were unconstitutionally infringing on “equal protection rights against wealth-based discrimination and violating due process protections against pretrial detention.”
Under what Carter called a “landmark settlement,” judges agreed to no longer ask for cash bail as a release condition for most criminal defendants charged with misdemeanors. The agreement also included the installation of a monitor to oversee bail practices for the next seven years, public defense services for poor defendants, and data collection to allow the country to analyze its practices.
Officials with Harris County’s pretrial services division told The Appeal that under the new arrangements, about 85 percent of people charged with misdemeanors will be released pretrial without bail.
District Attorney Kim Ogg objected to the settlement, saying in an interview with Houston Public Media that she supports bail reform, “but this proposed settlement is not bail reform that adequately protects the public” because it doesn’t take into account anyone’s interests except the arrestee. Republican misdemeanor judges had also opposed the reforms, but the November 2018 election brought a new wave of Democratic judges and county officials who supported dismantling the county’s bail system.
In late August, the Fifth Circuit Court of Appeals upheld a lower court’s ruling that a New Orleans magistrate judge has a conflict of interest when he sets bail for criminal defendants because bail fees help fund court operations.
A district court judge ruled last year that the fines and fees system at Orleans Parish Criminal District Court is unconstitutional. Karakatsanis, whose group filed the lawsuit, called the district court judge’s ruling an unusually comprehensive decision limiting cash bail because it meticulously spells out all of the equal protection and due process principles that bail violates.
“Plaintiffs have been deprived of their fundamental right to pretrial liberty,” Judge Eldon E. Fallon wrote. Given that “deprivation of liberty requires a heightened standard,” he said, a judge has to prove that there is “clear and convincing evidence” that someone should be detained.
Under the order, arrestees must be given hearings with counsel before they can be detained pretrial. The judge, meanwhile, has to present findings that detention is absolutely necessary before holding someone.
Since the ruling, some judges in New Orleans’s criminal courthouse have stopped assessing bail on criminal defendants.
After the Fifth Circuit ruling, an attorney for Cantrell said he is considering whether to challenge the decision, arguing that state law mandates that Cantrell oversee the fund in which cash bail is collected.
In another major decision, a federal judge ruled in June that St. Louis jails cannot hold people pretrial simply because they cannot afford to post bail. The ruling applied both to current detainees, who received new detention hearings, and to any future arrestees going through the city’s legal system, who would get a hearing within 48 hours of their arrests.
Legal groups filed the lawsuit on behalf of arrestees who said judges didn’t consider whether they were financially able to meet their bail amounts. The median bond set in St. Louis is $25,000, according to the lawsuit, but the median income in the city is just over $38,000. One lead plaintiff, David Dixon, told The Appeal in February that he was appalled when a judge ordered him to pay $30,000 in cash.
“At first I thought it was a joke,” Dixon said. “It was impossible. Ain’t no way I can come up with $30,000, let alone $5,000.”
Robert Dierker, an associate city counselor, told The Appeal that his office opposed the ruling and asked for a stay, partly because it could result in the release of “several hundred people charged with very serious felonies.”
But the federal judge blasted city officials, saying in a hearing that she was “somewhat appalled” the city was not abiding by her order and urging the city to implement the changes immediately.