Are There No Workhouses...? Low-Income Defendants, Bail and Pre-Trial Detention
A recent report by the Human Rights Watch reports that jails across this county routinely house low-income defendants who cannot come up with bail.

January 05, 2011 /24-7PressRelease/ -- While Scrooge was speaking of 19th century England, the question appears to be still relevant today. A recent report by the Human Rights Watch reports that jails across this county routinely house low-income defendants who cannot come up with bail. The report notes that, "according to the Bureau of Justice Statistics of the US Department of Justice, 62 percent of the nation's jail population consists of detainees awaiting trial."

For many low-income defendants, the requirement for posting any bail may mean they stay in jail until the disposition of their case. While many may think "So what, they did the crime, make them do the time," one must remember these people haven't been convicted, only arrested.

Setting aside our self-righteousness, we should remember that holding people in jail is not free and the nationwide price for all these defendants held without bail is calculated at $9 billion annually by The Pretrial Justice Institute.

Why Does This Happen?

In New York, the report lists some reasons.
- Judges may believe that defendants who can't be released on their own recognizance are a flight risk. Because they can't order pretrial detention of misdemeanor defendants, they set a bail they know won't be met.
- Judges fail to alternative forms of bail because uncommon, and not part of traditional judicial practice. Arraignment hearings process dozens of cases, and judges use standard decision making and have no reason incentive to change and risk appellate scrutiny.
- Some judges suggested defense attorneys are at fault failing to request alternative forms of bail. Judges, however, have the authority to decide the form of bail regardless of what the defense requests. Again, there is also the element of habit; defense attorneys are not in the habit of requesting alternative forms of bail, so they don't.

The Peg That Stands Out Gets Pounded Down

Habit plays a significant role, as there is little time to mull things over during arraignments. The court, prosecutors, and defense counsel all feel the pressure to 'keep things moving.' They want to avoid irritating the judges they have to appear in front of on a weekly basis. They believe judges will deny the request, and they will be seen as wasting the court's time. Many judges don't want to do something that stands out, slows down the process, and potentially brings down censure from an appellate court.

As the report points out "By not requesting judges to set bail in alternative forms, however, defense counsel contribute to their disuse. If the defense bar consistently pressed for unsecured bonds, for example, judicial practice might change."

Human Rights Watch says, "The present procedure is much too casual." They go on to point out that, little thought is put in to setting a $500 bail and its effect on the defendant. They conducted a study that showed in New York City 61 percent of the defendants with a bail of $500 or less fail to make it.

According to New York City Department of Correction, at any given moment, 39 percent of New York City's jail population consists of inmates who are in jail pretrial solely because they have not posted bail.

In 2009, there were 98,980 total admissions to the city's jails, half of which (51,047) were pretrial detainees incarcerated solely because they had not posted bail. Pretrial detainees charged with misdemeanors who had not posted bail constituted 22,846 admissions, or 23 percent of all admissions.

"Whether deliberately, inadvertently or carelessly, judges usually set money bail at an amount the defendant cannot afford, as evidenced by the fact that defendants in only 10 percent of all criminal cases in which bail is set are able to post it at arraignment."

It also raises havoc with the lives of those charged and the detention carries with it a coercive effect: "They lose their jobs; their physical and mental health deteriorates; and their families' social and economic networks fall apart. In the face of these consequences and under the threat of continued incarceration, many defendants, whether guilty or innocent, plead guilty simply to get out of jail."

The Price We All Pay

As mentioned above, in addition to the inequity of jailing those who haven't been convicted of any crime, merely because they are poor, there is an actual economic cost. The report cites the New York City Department of Correction for a figure of $161 per inmate a day in savings if the number of inmates is reduced by 800.

In New York in 2008, there were 16,649 nonfelony defendants unable to post bail of $1,000 or less who were held in pretrial detention an average of 15.7 days. If the city had not incarcerated any of those nonfelony defendants, it would have saved more than $42 million.

Vengeance is Mine or a Minister of Justice?

Prosecutors have a job to prosecute those arrested by law enforcement. They also have an additional duty, unique within the criminal justice system, which the Supreme Judicial Court of Massachusetts noted: "It is well understood that the duty of a district attorney is not merely to secure convictions. It is his duty to secure them with due regard to the constitutional and other rights of the defendant."

In the Massachusetts Rules of Professional Conduct, the first comment of Rule 3.8. Special Responsibilities of A Prosecutor, notes

"A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence."

The report suggests this doesn't always happen in New York. From the interviewing of Defense attorneys, there is a belief that "prosecutors ask for bail, including in cases they know are likely to be dismissed-as 34.5 percent of misdemeanor arrest cases are-simply to get pleas from defendants who will not want to languish in pretrial detention. Prosecutors deny this." However, the report questions what other reasons would explain why prosecutors would require bail for cases involving petty crime, most of which will never be tried.

Timothy Murray, executive director of the Pretrial Justice Institute, commented of prosecutors, most of whom he believes work in good faith, "But woven into their mindset is the idea you should somehow 'pay' from the moment of arrest, that you owe the system something just by virtue of being accused...because they implicitly believe-and must believe-that people who are arrested are guilty."

They also cite numbers that show in 22 percent of nonfelony cases with a detained defendant, the defendant was ultimately acquitted or the case was dismissed. In an additional 24 percent of cases with detention, the defendant was convicted but the sentence did not include any jail, not even the time they have already served.

This means that nearly half of detained, nonfelony defendants served time in jail only because they were unable to post bail.

Much Needed and Long Overdue

Human Rights Watch makes some suggestions as how to improve New York's bail system and many of them would apply to all jurisdictions. Nevertheless, as they note, "Judges, prosecutors and defense attorneys should not accept such pretrial detention as inevitable, much less desirable. They should vigorously, consistently, and where necessary, creatively exercise their respective authority under the law to try to ensure nonfelony defendants are not incarcerated pretrial for want of the funds to buy their freedom. We are asking in short, for a change in the way business is done with regard to bail setting and its outcomes. It may not be easy, but it is much needed and long overdue."

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