No Money? No Freedom

On July 16, 2013, nineteen year-old Justin Carter will have his day in court.  But roughly five months ago, the teen was arrested and charged with making a terroristic threat on his Facebook page. He has been in jail ever since.  Carter’s nightmare started when another player in the Facebook game “League of Legends” called Carter “crazy.”  Carter responded with what he believed to be a humorous and witty retort, “I’m f***ed in the head alright.  I think I’ma [sic] shoot up a kindergarten and watch the blood of the innocent rain down and eat the beating heart of one of them.”  Just two months after the horrific shootings at Sandy Hook Elementary School, a Canadian woman who saw the post did not find it humorous or witty.  In what some might consider “Facebook stalking,” the woman discovered Carter’s address and noticed that it was close to an elementary school.  She promptly notified police, who then arrested the young teen.  Apparently, Carter’s humor was also lost on the Texas judge who set bond at an astronomical $500,000, which Carter’s family could not afford.

Individuals who cannot pay the bail amount, or get a bail bondsman or another agent to cover the charge, remain in jail until their scheduled court date.  Even if an individual is fortunate enough to get a bail bondsman to pay the bail amount, bondsmen do not lend money for free.  A bail agent may charge the defendant ten to fifteen percent of the bail amount before posting bond, a fee that the defendant will not get back regardless of the ultimate verdict.   Additionally, when the bail agent posts bond, if the accused does not return to court on the date of their trial, the bail agent is forced to pay the full amount of the bail.

While the vast majority of Americans would not be able to pay the hefty $500,000 bond set in the Carter case, it is much more common that poor defendants arrested for minor crimes cannot pay more modest bonds.  Because the bondsman must absorb the cost of the bond if the defendant fails to return to court, the bondsman is unlikely to post bond for small amounts, such as $500, because their ten percent take, $50, is too small to justify the risk.  As a result, the poorest and most financially unstable defendants are left in jail while their rich counterparts go free.  

While most states require judges to take public safety into account when setting bail, New York is different.  In New York, the main criterion for setting bail is the risk of the defendant not returning to court for trial.  Accordingly, judges weigh factors such as criminal record and ties to the community to determine whether a defendant is likely to flee the jurisdiction.  Therefore, a defendant with an extensive criminal record and no job, but who poses no risk to the community, might be held on a relatively high bail when the crime charged might only be a nonviolent misdemeanor.  Consequently, only forty-four percent of the defendants offered bail in New York City post bail before their cases go to trial.  In most states, bail determinations are made based on the seriousness of the crime charged as well as the risk of the defendant not returning for trial.

So what is the solution?  Supervised release.  Not only is a system of supervised release fair for poor defendants, but it also saves the taxpayers money.  According to New York’s Chief Judge Lippman, nationally, it costs taxpayers roughly $19,000 to keep a defendant in jail before trial, and only $4,000 on a supervised release program.  The D.C. Pretrial Services Agency is the national model for demonstrating that pretrial justice though supervised release can be achieved and a defendant’s incarceration does not need to depend on relative wealth.  The D.C. Pretrial Services Agency has virtually eliminated the use of money bail without jeopardizing public safety and using the least restrictive conditions of release.  In 2008, eighty percent of all defendants were released without money bond, fifteen percent were held without bail, and only five percent had financial bail.  Of the released defendants, eighty-eight percent made all court appearances, and eighty-eight percent completed the pretrial release period without a new arrest.     

Bail reform in D.C. began with the Federal Bail Reform Act of 1966, which provided many factors a judge must consider before making a pretrial release decision.  Some of these factors included employment, community ties, residence status, and other information not typically available to judges in making bail determinations.  By 1967, the D.C. Bail Agency was interviewing all felony defendants and making those results available to the judges.  However, financial bond continued to be the most popular method of determining detention because there was no way to supervise released defendants prior to trial.

In 1970, Congress expanded the D.C. Bail Agency and established an offender supervision unit.  Congress also drastically limited the circumstances in which defendants could be held in pretrial detention so as to promote pretrial release upon consideration of the risk of danger to the community in addition to failure to appear in court.  In conjunction with the new requirements, the Agency would make recommendations to the judges on all pretrial detentions based on an extensive assessment of the information collected on each defendant.  Additionally, the Agency established a Failure to Appear Unit, which resolves issues with bench warrants and allows defendants to voluntarily surrender on warrants; a Drug Testing Unit, which screens all defendants before their initial appearance in court and implements drug tests while defendants are on pretrial release; and an Intensive Supervision Unit, which provides supervision to defendants in halfway houses.

Finally, in 1992, the D.C. Code was updated to forbid the use of money bail to detain defendants, and only permit such use on rare occasions. Since then, D.C. Pretrial Services has only continued to grow and develop other means through which defendants can be diverted from jail.  Currently, the D.C. Superior Court runs a Drug Court Program to divert dependent or addicted defendants with nonviolent misdemeanor and felony charges, and offers participants a structured approach to treating their addictions.   The D.C. Superior Court also has a Mental Health Community Court to divert mentally ill defendants and improve their mental health by connecting them with the appropriate community services and monitoring their progress.

In conclusion, D.C. Pretrial Services has effectively alleviated the problem of pretrial incarceration due to wealth disparity and has effectively established a pretrial release system that results in the safe release of the vast majority of defendants without money bail.  Other states can learn from D.C. by recognizing the importance of extensive data collection in pretrial release determinations, and collaboration between pretrial services, judges, prosecutors, and public defenders. 

Jared Engelking

Blogger, Criminal Law Brief

Image by: I, Daniel Schwen [GFDL (http://www.gnu.org/copyleft/fdl.html), CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0/)], via Wikimedia Commons.