Our Upside Down Judicial System: Punishment Before Trial – Fourteenth Amendment Shattered
Innocent Until Proven Guilty, But Only If You Can Pay
How America’s bail system traps poor people in jail
“I did something stupid, and something I shouldn’t have done” are the first words of Bill Peyser’s tale of how he ended up getting arrested and jailed for the first time in his life at the age of 73.
Peyser, a San Francisco cab driver, says he had been frustrated with a couple of noisy younger neighbors in the spring of 2017. Exhausted and angry after a sleepless night that had led to him skipping a day of work, he decided to confront them on the afternoon of April 17.
The “something stupid” that Peyser agrees he shouldn’t have done was to bring a .22-caliber handgun with him when he went to their apartment.
Though the men did not answer the door when Peyser repeatedly kicked it, they saw him through the peephole and called the police. There was no direct confrontation, but as Peyser was leaving, he fired the gun by accident while trying to uncock it in the hallway. According to one of Peyer’s attorneys, the bullet lodged in a wall in the lobby of the building a few inches off the floor. Nobody was hurt.
The police came and arrested Peyser. Peyser explained what happened, but he says police refused to believe it was an accident and insisted he was trying to harm his neighbors. He says he was prepared to plead guilty to what he had done—brandishing a weapon. But when he was brought before the court, he found he was being charged with attempted murder, two counts of assault with a semi-automatic firearm, and discharging a firearm at an inhabited dwelling.
What happened to Peyser next illustrates a chronic problem, one civil rights advocates are attempting to force states and counties to address. Peyser ended up stuck in jail for six months while awaiting his trial not because he was a threat to society—he was a septuagenarian with no criminal record who hadn’t actually injured anyone—but because he didn’t have enough money to pay for bail. Activists argue that cash bail systems violate the rights of people like Peyser who have been charged, but not convicted, of crimes. More and more, judges, lawmakers, and even prosecutors are starting to agree.
From ‘Menace to Society’ to Law-Abiding Citizen
Peyser’s bail was set at $625,000, based on the schedule for his alleged crimes. The attempted murder charge was later dropped, but the bail didn’t change. If Peyser wanted to fight these charges from outside of a jail cell, he needed to either cough up cash or pay a bail bondsman a portion of the cost (typically 10 percent) to front the money for him.
Peyser did not have that much. He qualified for representation by a public defender because he was considered indigent. He and his defense attorneys tried to get multiple judges to reduce his bail, pointing out his stellar record and the possibility of losing both his taxi medallion and his rent-controlled apartment. He had turned the gun over to police and didn’t want it back. He promised to stay away from the neighbors.
No dice. He would spend half a year in jail until his case was heard in October, at which point the jury watched the security footage of what happened, deliberated, and found him not guilty on all counts. “It looked like an old man doing something stupid,” says one juror, speaking to Reason on condition of anonymity. The charges—which required proof of intent—didn’t match what they saw.
“This is not a violent guy who needs to be put away,” the juror says. Yet just months before, a judge had insisted that Peyser represented a public safety threat and a flight risk due to the severity of his charges—he faced a possible sentence of 19 years in jail—as justifications for his remarkably high bail.
“Both judges accused me in open court of being a menace to society and one added that I was a threat to public safety,” Peyser says. “And mind you, there had been no trial.”
If Peyser had had the money, he would have been treated completely differently. “If you tell the judge you can’t pay the bail, the judge drops any pretense whatsoever of impartiality,” he says. “If you pay the bail, you’re a regular citizen. If you don’t pay the bail, you’re treated as guilty until you’re proven innocent.”
Even though Peyser was ultimately exonerated, the whole incident imposed a steep cost. He had to give up his taxi medallion and is no longer working. His landlord also started proceedings to evict him, though he was eventually able to convince the landlord to let him stay.
‘A Blight on the System’
Peyser’s defense attorney, Chesa Boudin, wanted to use his case to challenge the constitutionality of California’s money bail system. Boudin is on the board of the Civil Rights Corps, a non-profit legal group that uses litigation to try to overturn what its members see as court and detention mechanisms that disproportionately and unfairly hurt the poor and disenfranchised.
Boudin wasn’t successful with Peyser, but in January, a state appeals court in San Francisco sided with the Civil Rights Corps in another case. “A defendant may not be imprisoned solely due to poverty,” the three-judge panel ruled.
In that instance, a 63-year-old man was being detained, unable to pay the $350,000 bail demanded for allegedly breaking into an elderly neighbor’s apartment, threatening him, and stealing $5 and a bottle of cologne.
“The problem this case presents does not result from the sudden application of a new and unexpected judicial duty,” the judges noted after ordering a new bail hearing for the man. “It stems instead from the enduring unwillingness of our society, including the courts…to correct a deformity in our criminal justice system that close observers have long considered a blight on the system.”
The days of judges deferring to fixed bail schedules, which are established by city and county governments and set dollar amounts based on the severity of charges, may be coming to an end. The days of money bail itself may even be numbered. California lawmakers are considering whether to remake the state’s pretrial system so that money is not a consideration in determining who remains behind bars prior to actually being tried. The state’s chief justice and attorney general have declared support for such reforms. If California follows through, it’ll be joining such states as New Jersey, which started a similar transition in 2016, and Alaska, which launched reforms earlier this year.
In the meantime, groups like the Civil Rights Corps are keeping the legal pressure on. Prior to the January ruling, the group had found success in Harris County, Texas, home of Houston. In 2016, it filed suit against the county’s bail practices, arguing that the reliance on bail schedules to determine who was freed pretrial left 500 people stuck in jail each night for misdemeanors solely because they couldn’t pay—not because they were dangerous or posed a flight risk. The group argued this violated the defendants’ equal protection and due process rights. In April 2017, a little more than a week after Peyser was arrested, a federal district judge agreed and ordered the county to start releasing indigent defendants.
Harris County officials are now grappling with the need to make changes to their pretrial detention system as subsequent rulings made it clear that the courts had come to a dim view of using bail schedules as the sole determinant of who ends up stuck behind bars.
Punishment First, Conviction Later
Even a small amount of jail time can cause huge disruptions in the lives of the accused. The Pretrial Justice Institute was founded in 1976 with the help of Department of Justice funding to research and advise on policies for the treatment of people who have been arrested but not yet tried. Years of data and analysis have determined that three days in jail is all it takes to cause serious problems. When courts tie defendants’ pretrial freedom to money bail, it ends up being a form of punishment for those who cannot pay, prior to any conviction.
His bail was set at $625,000 based on the schedule for his alleged crimes. He did not have that much. He spent half a year in jail before the case was heard, at which point he was found not guilty.
“When those folks managed to get out, [their] jobs were gone,” explains Cherise Fanno Burdeen, CEO of the Pretrial Justice Institute. “It makes it impossible to make rent or mortgage payments. Families lose homes. It has an almost instantaneous detrimental effect on people’s lives.”
And there are a lot of these people in America, the world leader in incarceration. According to a 2018 study in the American Economic Review, half a million people in the country are being detained before their trial on any given day—nearly twice as many as in China. The report cites the use of money bail as a driving factor, noting that the typical defendant is poor. Less than half of them can afford bail even when it’s set at under $5,000.
When defendants are stuck in jail while awaiting trial, data indicate they’re more likely to plead guilty or be found guilty of crimes. They’re also likely to be given longer prison sentences. This is partly a result of their not being in a position to bargain with prosecutors, because they’re stuck behind bars and desperate to move things along.
For low-level crimes, all that time spent in pretrial detention can be equivalent to the length of the sentence they’ll get if they’re found guilty anyway. A poor defendant who can’t afford bail may spend days, even weeks, in jail waiting to see a judge for a crime where prison time might not even be required. At that point, it’s hard to justify spending time or money fighting the charge, even if backing down leaves an innocent person with a criminal record.
“Everybody who works in the system knows that the assembly-line cash bail system coerces guilty pleas,” says Civil Rights Corps founder and executive director Alec Karakatsanis. Because American courts don’t have the manpower to prosecute and try every person who gets arrested, he argues, “the system needs a way to coerce them into pleading guilty. The most effective way is to keep them in jail.”
Long Coming But Slow Going
Spring 2018 finally saw calls for pretrial reforms start to spread across the country.
In Atlanta, media attention on the case of a homeless man who spent three months in jail because he couldn’t afford $200 in bail for a charge of soliciting on a roadway prompted the City Council and mayor to change the municipal court’s system, cutting out cash bond requirements for several low-level nonviolent crimes. New Philadelphia District Attorney Larry Krasner, voted into office in November 2017 on a criminal justice reform platform, announced in February that prosecutors there would stop asking for cash bail for low-level offenses. Philly’s City Council also passed a resolution asking the state to end cash bail. In his state of the state address in January, Democratic New York Gov. Andrew Cuomo called for an end to cash bail for misdemeanors and nonviolent felonies there as well.
This isn’t only happening in Democratic strongholds, either. Arizona and New Mexico have seen pretrial detention reforms to reduce the dependence on money bonds for release. And legislation has been introduced in Ohio to use assessment tools to help judges determine release risks and reduce the dependency on bail.
The Pretrial Justice Institute sees the current push as the third generation of bail reform efforts. In the 1960s, Congress established a statutory right to bail unless the defendant is deemed a flight risk. (The Eighth Amendment protects against excessive bail when offeredbut doesn’t require that bail be an option in a given case.) Whether the arrestee might commit more crimes if released was not initially considered relevant. That changed in 1984, with a reform permitting federal courts to keep people imprisoned prior to trial if they’re deemed a threat to the community. The law was upheld in a Supreme Court challenge in 1987.
Burdeen believes the latest wave of reform efforts dates to 2011, when then–Attorney General Eric Holder hosted a symposium on the topic at the Department of Justice. He called for using risk assessments and other evidence-based tools to help courts decide who is safe to release. He also encouraged an expansion of pretrial services across the country—court staff devoted to tracking and communicating with defendants to make sure they don’t skip out on court dates or commit crimes while freed. Burdeen says they’ve spend the past eight years working to push those tools out to states and cities.
Years of data and analysis have determined that three days in jail is all it takes to cause serious disruptions. “When those folks managed to get out, [their] jobs were gone,” an advocate explains.
But seven years later, meaningful change is just getting underway. Part of the reason is that what happens when a person gets arrested can vary widely from state to state and even from jurisdiction to jurisdiction. Courts across the U.S. don’t all approach pretrial release decisions in the same way, so there’s no single implementation plan that can be adopted in one fell swoop. Changes have to happen bit by bit. And since these reforms threaten a billion-dollar industry, bail bond representatives have been lobbying lawmakers and appealing to the public to try to stop reform in its tracks.
‘We Had Gangs Putting Up the Money’
Peyser would have faced a far different pretrial experience had he been arrested in Paterson, New Jersey, instead of San Francisco. At the beginning of 2016, the Garden State launched a massive transformation of the pretrial detention procedures used in its district courts that has nearly eliminated the use of money bail as a mechanism for determining who goes free and who remains behind bars. Instead, the state now has a complex system involving case-by-case analyses and a bureaucracy devoted to keeping track of defendants to make sure they show up for court.
Visit the Passaic County Superior Court and you might not even hear the word “bail” during pretrial hearings. On a Monday afternoon in February, those arrested late Saturday, Sunday, and early Monday are brought in front of Judge John Meola (virtually—they remain in jail but appear on a monitor). Meola presents a recommendation from Pretrial Services of each defendant’s risk factor. It’s up to prosecutors to request a detention hearing if they believe a person is too dangerous to be let out. If not, the judge will order the defendant released, often with conditions requiring him or her to check in regularly with the pretrial staff.
On the day of my visit, prosecutors do inform the judge they want to detain a few people. In those cases, the defendant will be held pending a detention hearing in three to five days in a different courtroom. There, another judge will preside as the prosecution and the defense argue over whether the individual should be freed prior to his or her trial. There are unlikely to be debates over bail amounts; judges technically still have the authority to demand money bail in some situations, but last year they exercised the option only 44 times. If defendants violate the terms of their release, they’re sent back to the same courtroom, where they may see their pretrial freedom revoked.
Today, Judge Donna Gallucio will decide whether Anthony Harris, 47, will be allowed to leave the jail. Harris was arrested the previous Tuesday in a drug bust, along with his brother, Charles. Police accuse the two of narcotics trafficking. During a short chase, Charles tossed aside a sack containing 93 baggies of crack cocaine and 101 glassines of heroin, according to the police report.
At the start of the hearing, Gallucio explains to Harris how the court functions. Under the new pretrial system, New Jersey operates on a presumption against detaining defendants before they are convicted. If a prosecutor objects to this freedom, the burden is on the state to convince the court that there is no reasonable way to ensure the defendant will show up for trial and won’t commit further offenses if released.
Harris does have a history of drug violations and failure to appear in court, but it’s an old history, and a nonviolent one. He’s been out of trouble for the past decade; he is not currently on probation or parole. A points-based assessment scored Harris as fairly high-risk due to his past, but it still recommended he be released with regular monitoring. Ultimately, the judge agrees with the recommendation rather than the prosecutor. Harris will be freed prior to his trial, but he must call and personally visit the court’s Pretrial Services office for monitoring, not commit any crimes, and stay away from his brother.
Judge Ernest Caposela, the courthouse’s assignment judge, explains that prior to the reforms in New Jersey, about 12 percent of the pre-conviction jail population was stuck behind bars because of an inability to afford even $250 in bail. Meanwhile, defendants that judges and prosecutors thought were truly dangerous had to be offered bail as well—and even very high bail amounts aren’t a significant barrier to those with the right connections.
“We had a lot of problems with gangs putting up the money,” he says, in cases of alleged violent crime. “Our goal is this: We keep the highest risk in jail. One of the things the public has not understood, and even the judges initially, is that this is not to let everyone out of jail. It’s not ‘get out of jail free.’ It’s to keep the most dangerous people in.”
Not Just an Algorithm
Several floors down, employees of the Pretrial Services office work in cubicles, taking calls and checking in on those awaiting trial. They don’t just passively wait to hear from defendants, explains John Harrison, criminal division manager for the courthouse. They will contact defendants to check on their status and make sure they’re aware of pending court dates.
The pretrial services staff are also responsible for collecting the information and producing the risk assessments that judges use to help guide their decisions. Harrison shows off how the automated, algorithmic recommendations are put together. They use a Public Safety Assessment system pioneered by the Laura and John Arnold Foundation that—striving to be as objective as possible—puts a numerical rating on each defendant, based mostly on his or her history. It considers whether the person has previous convictions, whether the charges are for violent crimes, and how often he or she has missed court dates both recently and in the past. The assessment doesn’t take into consideration socioeconomic factors such as race, employment, zip codes, or anything else that isn’t connected to the defendant’s actual behavior. The one exception is age, and only because defendants under 20 statistically have an increased likelihood of missing court appearances.
With a few clicks, Harrison is able to run an assessment of a defendant scheduled to make his first appearance that afternoon. The computer measures him on two scales. One quantifies the risk that he’ll commit new crimes while on release. The other quantifies the risk that he’ll skip out on the court. Each is represented as a number from zero to six.
While the algorithm populates the numbers automatically, Harrison gets much more than just a couple of digits. The system also shows the information that led to the rankings. This defendant’s risk factor has been elevated due to a previous conviction. Harrison is able to quickly see that the conviction was for misdemeanor joyriding. The prosecution and defense will see this information, too. A decision on whether he’ll be kept in jail before his trial will not be based on just an algorithm spitting out a two or a five.
Prior to the reforms in New Jersey, about 12 percent of the pretrial jail population was stuck behind bars because of an inability to afford just $250 in bail.
“Three years ago, these reports might not have been seen,” Harrison explains, before a judge was asked to determine a defendant’s release requirements. “They might not have had all the information.” Without a risk assessment, judges tended to rely on bail schedules that give dollar amounts on the mere basis of the charges filed.
But does the new system work? On the most obvious level, yes: Fewer people are being kept behind bars. A report covering the first year of these reforms, submitted by the New Jersey Courts to the governor’s office, noted that the state saw a 20 percent drop in pretrial detentions across 2017. All in all, there’s been a 35 percent drop in the pretrial jail population dating back to 2015. Of the nearly 150,000 defendants charged with crimes in New Jersey last year, only 5.6 percent remained locked up prior to their trials.
This drop in detentions did not appear to result in a crime wave. A report released in March noted a small (2.7 percent) decline in the state in 2017. That’s not out of line when compared to other nearby states, according to statistics collected by the FBI. Crime throughout the Northeast generally declined last year.
When There’s No Middle Ground
No matter where they might fall ideologically, those calling for bail reform consistently point fingers at one foe for the sad state of the status quo: bail bondsmen. The Civil Rights Corps’ Karakatsanis bluntly calls the current pretrial situation “a wealth transfer from the poor to the bail industry.”
Activist groups in some cities have developed nonprofit community bail funds to assist defendants in getting out without turning to bondsmen. A smartphone app called Appolition, launched last November, lets citizens donate directly from their bank accounts to help fund strangers’ bail. But arguably the biggest cultural shift came in May, when Google and Facebook, partnering with several civil rights organizations and joined by representatives of Koch Industries, announced that they would no longer accept online advertisements from the private bail bond industry. (The Charles Koch Institute and the Laura and John Arnold Foundation support Reason Foundation, the nonprofit that publishes this magazine.)
A New Jersey commission in 2014 blasted the private bail system not just for leaving low-income nonviolent offenders stuck behind bars but also for corruption. Furthermore, it found, the whole bail industry operates on the idea that the bondsmen are taking a financial risk in covering the client’s bail via “surety bonds”—but it turns out courts were not actually collecting most of the money these bonds promised when defendants skipped out. In 2013, the average settlement for forfeited bail amounted to 12.5 percent of what was owed. The bail companies were getting paid, but they were not risking nearly as much as people assume.
Representatives from the bail bond world have lobbied heavily and even filed suit to stop reforms in places like New Jersey and New Mexico that reduce the demand for cash bail. If these experiments spread, they could take out an entire industry that employs thousands and earns billions.
Jeff Clayton, executive director for the American Bail Coalition, has demanded data showing that New Jersey’s shift is actually working. (The state will be releasing a report in the fall examining recidivism rates under the new system.) He also critiques the new either-or scenario in New Jersey: You’re either free or you’re detained, with almost no options for those kept locked up to post money and get out. “I think what New Jersey is going to prove is that giving them the power to detain with no bail is even more dangerous,” he says.
Clayton notes that the request rate by prosecutors to hold defendants without bail varies from court to court. One in New Jersey detained a third of all defendants who were eligible for release in this system. Another jailed less than 10 percent.
Indeed, the reform was designed to give courts more power to detain people with no pretrial way out. It’s one of the reasons then–Gov. Chris Christie called for changes. Previously, the state constitution required that arrestees be offered bail for anything other than a capital crime (and New Jersey no longer has capital punishment). Some 8,000 people were held until their trials in the state last year. Most of them would have previously been offered some sort of bail, even if they couldn’t afford it.
“The defense of posting financial conditions for jail release is that it’s a constitutional right,” Clayton argues. “I think that’s the tradition on this continent. Whether it should be required is up for debate.”
Clayton and Karakatsanis couldn’t be further apart on the use of cash bail, but interestingly, they both raise a similar specter: that when cash bail is eliminated, it could lead to increased rather than decreased jail detentions.
Caposela, the assignment judge, explains that New Jersey’s pretrial changes came amid some other criminal justice reforms that pushed police officers to give summonses rather than seeking warrants—meaning fewer arrests in the first place. The court system also made significant changes intended to force speedier trials. Once somebody is arrested in the state, prosecutors have 90 days to indict him, and in most cases people must be tried within 180 days.
In other words, defendants in New Jersey who are kept in jail are not going languish for extended periods waiting for their trials. These bail reforms didn’t happen in isolation; they included massive changes to the way the court system operates to improve its efficiency. They’re not cheap, either—New Jersey’s new system comes with a price tag of $35 million for next year. But what if a court somewhere got rid of cash bail but also let prosecutors wait years before bringing jailed defendants to trial? What if it didn’t or couldn’t fund the pretrial services component of New Jersey’s reforms?
There’s also reason to fear that if judges are not given a proper framework for determining when to detain, they may be reluctant to consider letting even remotely risky people out, since public backlash could fall on them if something goes wrong.
In Maryland last year, judges were told to consider money bail as a final resort rather than as the default and to not hold defendants in detention solely because they couldn’t afford the bail amounts. This ended up backfiring in Baltimore. Some local law students looked over the dockets and found that defendants were being detained without any bail opportunity at all—even nonviolent defendants with no criminal history. Suddenly, pretrial detentions were going up, not down. In May, a local television station reported that even though arrests in Baltimore had declined compared to 2017, the number of people who were stuck in pretrial detention had increased 31 percent.
For the same reasons, Karakatsanis is watching California with some concern. Will the judges who previously refused to look at risk factors when setting bail for defendants like Bill Peyser simply resort to “widespread preventative detention” if cash bail ceases to be an option? He also worries about changes that might permit for-profit companies to take control of pretrial monitoring services and then shift costs over to defendants, by making them pay for their own monitoring even though they haven’t been convicted of a crime. That already sometimes happens in places where the state runs the system; Georgia law currently allows judges to order defendants to cover the costs of pretrial electronic monitoring when such a measure is ordered as a condition of their release.
“If you care about the intrusion of the government on individual liberty,” Karakatsanis says, “just getting rid of the cash bail system is great. But it sets up another fight.”