Category Archives: bail

Bail me out, bro

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 arrested1no 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.

  1. 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).
  2.  Ian Ayres & Joel Waldfogel, A Market Test for Race Discrimination in Bail Setting, 46 Stan. L. Rev. 987, 992 (1994).

Guilty of being poor

There is a myth that persists among criminal defendants that is well known to all of us: if you are poor, there’s a greater likelihood you’ll be found guilty of something. This myth – and a myth it is, because the rate of conviction is so damn high that you can’t honestly carve out any special class among the universe of defendants – is a steady source of amusement for the public servant.

“Man, if I had a real lawyer, I’d have gotten a dismissal already.”

Yeah, sure.

“I know how this works. If I had a private lawyer, he could fight for me more, but I can’t afford one so I’m stuck with you and this crappy deal.”

Whatever you say.

The irony is that the myth “you’re guilty if you’re poor” is just a few minor edits away from being close to the truth. The reality is that in the volume-high, fund-low world of indigent defense, most people are certainly guilty of one thing: being poor.

I’m not referring to the link between poverty and crime, for which there is much to be said – despite the tortured claim put forth last year that the declining economy coincided with a declining prison population and hence there was no link, an argument that any statistician worth the paper his degree was printed on would snarkily dismiss out of hand with the acronym SSS* – and indeed much has been said, but rather to the reality that unfolds every single day in the busiest courthouses across the country.

In response to my post yesterday on the “difficulty facing public defenders” [and if you want to read a more thoughtful post on the subject, check out Gamso’s], a commenter points out that what I identified as a difficult wasn’t really exclusive to public defenders. The presumption of guilt applies to all defendants. But what is special to the indigent bar is that we often have to sit by and watch clients plead guilty, without having a clue whether they are actually guilty or not and without having the opportunity to determine that.

For almost every defendant except the guy doing life on the installment plan, the single biggest motivating factor is liberty. “When can I get out?” is the paramount question.

What does “excessive” mean anymore?

Article 1, Section 8 of the Connecticut Constitution states:

In all criminal prosecutions, the accused shall have a right … to be released on bail upon sufficient security… nor shall excessive bail be required…

The Eight Amendment to the United States Constitution states:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Despite this, the bonds imposed by local judges have grown at a tremendous rate. The numbers being thrown about these days are just… well…excessive. Take, for example, the recent tragic shooting at Wesleyan. When arrested, the police set bond on the defendant at $10 million, already an astronomical amount.

Apparently that wasn’t enough. Perhaps in a show of force for the public and/or media, the judge raised the bond to $15 million. Now, I know nothing about the financial circumstances of the defendant here, but I find it hard to believe that there are people who can post bond in the amount of $10m, but not $15m. That’s entirely silly and nothing more than appearances. (One might argue that it doesn’t make a difference because he couldn’t post $10 million anyway, so who cares if it’s $15 million or $30 million. I care, that’s who.)

So at what point does a bond become “excessive” and thus in violation of either the State or Federal constitutions? The point of bond (or bail) isn’t to ensure that the defendant cannot post it, but rather to ensure that he has enough invested in the posting of that bond that it provides an incentive for him to return to court and thus avoid forfeiting that amount.

Now, this isn’t a jurisprudential hot topic, so cases on point are relatively few and far between. But there is some guidance. Starting with the Constitutional import of bail, in State v. Ayala¹, the CT Supreme Court reiterated that the Constitutional provisions: