Put Up or Stay Put

11/26/2018

STATE LEGISLATURES MAGAZINE | NOVEMBER-DECEMBER 2018

Illustration of criminatl justice policy being painted

The Ability to Post Bail Plays a Big Role in Deciding Who Stays in Jail and Who Goes Free

By Rebecca Pirius

In the 1800s, a person could land in jail for not paying rent to his or her landlord.

Debtors’ prisons were banished almost two centuries ago, but it’s not uncommon to see the term in news headlines today. A debtor can no longer be locked up for failing to pay a private creditor, but people can end up behind bars if they can’t pay their court fees or can’t make bail before their case is heard. Pretrial defendants, despite being presumed innocent until proven guilty, can languish in jail, sometimes for months, without being convicted of a crime.

Recent criminal justice reforms are shedding light on the roles wealth and poverty play in determining who goes free.

Recent Reforms and Court Cases

Pretrial release and bail reform efforts, such as reducing reliance on cash bail and using non-financial release options, are sweeping the nation. In nearly half the states, the law starts with the presumption that certain defendants be released solely on their promise to appear.

Now, attention is turning to whether the accused’s ability to pay should matter when setting bail. Based on data from the Federal Reserve, making bail would be a hardship for 40 percent of Americans, who say they do not have at least $400 available in cash for unexpected, emergency expenses, like a flat tire or broken appliance, or a bail bond.

A California case made headlines earlier this year when a court ruled that a “defendant may not be imprisoned solely due to poverty.” The case involves Kenneth Humphrey, then 63, who was accused of following a 79-year-old disabled man into his apartment and demanding money. Humphrey has a history of substance abuse and several prior felony convictions. In this case, he allegedly took $7 and a bottle of cologne from the man.

Bail was originally set at $600,000, tantamount to a detention order for Humphrey. California’s 1st District Court of Appeal held that the lower court’s failure to consider what Humphrey could afford when setting his bail violated his due process and equal protection rights.

The case is just one of several nationwide alleging bail schedules amount to a form of wealth-based detention. As courts address the issue, state legislatures also are stepping in and tackling financial inequities associated with pretrial detention. Below are examples of several recent legislative efforts.

Ability to Pay

Ability-to-pay determinations often require courts to consider factors beyond a defendant’s income and assets when setting bail. Courts must consider, for example, whether a defendant is a family’s sole breadwinner. The goal is to prevent long-term detention of defendants who are neither a threat to public safety nor a flight risk. New Hampshire law, for example, states that the court “shall not impose a financial condition that will result in the pretrial detention of a person solely as a result of that financial condition.”

Pretrial Fees and Options

A few states have extended ability-to-pay determinations to include pretrial supervision fees, such as those for electronic monitoring or substance use treatment. Nebraska directs the courts to waive pretrial supervision fees that a defendant cannot afford, while Illinois law presumes conditions of release are nonmonetary. California’s recently enacted legislation goes the furthest by prohibiting courts from requiring a defendant to pay any pretrial supervision fees.

Use of community supervision as an alternative to jail is on the rise. A few days in jail can upend people’s lives, costing them their jobs and financial stability. Supervision in the community aims to let defendants keep their jobs and protect public safety.

States also are increasing the use of electronic monitoring and home detention for moderate-risk pretrial detainees. A new Massachusetts law will soon enable sheriffs to recommend that the court place pretrial detainees unable to make bail in pretrial service programs. Vermont law now encourages judges to consider home detention if a defendant is unable to pay bail. And Louisiana’s Lafourche Parish made permanent its Pretrial Home Incarceration Pilot Program, which includes electronic monitoring of defendants.

Second-Look Hearings

Some states require courts to take a “second look” at the bail amount initially ordered and determine whether inability to pay is keeping a detainee behind bars. Some states mandate a review after a certain time frame; others require the defendant or another party to make the motion. The time limits and procedures vary by state.

 Delaware requires judicial review of pretrial release conditions within 10 days of detention, if the person is unable to make bail within 72 hours. In Texas, certain defendants who do not post bail after 48 hours are presumed to be unable to pay. Illinois not only requires a second-look hearing, but also provides a $30 credit against a detainee’s 10 percent cash bond for every day he or she is detained pretrial. Once the bond amount reaches $0, the defendant must be released.

A New Conversation

The dialogue on bail continues to change. This year, the Delaware legislature renamed its “system of bail” a “system governing the release of defendants pending a final determination of guilt.” Nebraska added statutory language directing courts to consider “all methods of bond and conditions of release to avoid pretrial incarceration.”

And California—well, California just entirely eliminated cash bail.

Rebecca Pirius is a senior policy specialist in NCSL’s Criminal Justice Program.

Additional Resources

NCSL Resources