For most people who get arrested for anything, big or small, the only thing standing between them and liberty is the amount of bail that will be set. For everyone, the only thing standing between them and the bail amount is the judge or judicial officer who will set that bail. For a significant portion of the people in this country who will be arrested1, no one will stand next to them when they face that judicial officer who will determine the bail that will allow them to get freedom.
That’s the warning bell rung by a brand new report from The Constitution Project [PDF], which analyzed the state of pre-trial right to counsel at bail hearings and concluded that very few people have the benefit of counsel, which leads to high bail amounts, greater incarceration and increased numbers of people pleading guilty simply to get out of jail.
The present system tilts the scales of justice, as state and local prosecutors gain a significant advantage at the outset of prosecution when poor people appear alone, receive unaffordable bail or are remanded into custody, and then wait in jail for assigned counsel to appear. There are countless instances across the country in which a poor defendant languishes in jail, often for a minor offense, and subsequently pleads guilty in exchange for regaining liberty.
And, of course, the study finds that minorities are disproportionately affected:
African Americans and other people of color comprise the majority of the pretrial jail population. Studies reveal that “bail amounts set for black male defendants were 35 percent higher than those set for their white male counterparts.”2
Further, in drug offenses, African American and Latino defendants are 96% and 150% more likely, respectively, to be incarcerated before trial than white defendants. In property crime arrests, African American and Latino defendants are 50% and 61% more likely, respectively, to remain in jail than their white counterparts. Scholars have concluded that African Americans and Latinos are “more likely to be preventively detained, to receive a financial release option, to post a higher bail, and to be unable to post bail to secure their release.”
Racial biases, even if unconscious, may influence judicial officers’ decision-making at pretrial release determinations. “Research on labeling and stereotyping of black male and Hispanic offender reveals that court officials (and society-at-large) often view them as violent-prone, threatening, disrespectful of authority and more criminal in their lifestyles.”
African American detainees spend a longer time in detention, are convicted at higher rates, and receive harsher sentences. Empirical studies show that the longer a defendant spends in jail before trial, the more likely he or she is to be convicted and receive a more severe sentence. Defendants released before trial are likely to obtain more favorable pleas and outcomes.
According to the study, the solution is to ensure that all individuals, when arrested and are facing a judge making a bail determination, should have the assistance of counsel. Connecticut already does that, but apparently it is in the minority of states that do so. And even here we have our problems. In order to be Constitutional, bail amounts must be set no higher than what is necessary to ensure the appearance of the defendant in court. In today’s world, however, the word “excessive” has lost all meaning.
- And studies show that 1/3rd of Americans will be arrested by age 23: Maryland v. King, 133 S. Ct. 1958, 1988 (Scalia, J., dissenting)(citing Brame, Turner, Paternoster, & Bushway, Cumulative Prevalence of Arrest From Ages 8 to 23 in a National Sample, 129 Pediatrics 21 (2011). ↩
- Ian Ayres & Joel Waldfogel, A Market Test for Race Discrimination in Bail Setting, 46 Stan. L. Rev. 987, 992 (1994). ↩