More Focus Needed on Bail Crisis

The New York Times Magazine just highlighted a significant crisis in our criminal justice system in a powerful piece titled The Bail Trap.  The article focuses on the number of accused who spend time in jail unnecessarily because they can’t afford bail and are forced to accept pleas — often for crimes they didn’t commit — to get out of jail. There isn’t a criminal defense attorney in this country who doesn’t get the point made in the article that “bail acts as a tool of compulsion, forcing people who would not otherwise plead guilty to do so.”

The article also addresses the reality that time spent being advised by counsel before a decision to plea is often embarrassingly short. If you haven’t read the NACDL Report Three-Minute Justice, it is a must read. And although the accused in the article seem to have counsel during a bail determination hearing, there are still many parts of this country where accused persons do not have counsel during bail determinations.

As co-chair of the Defense Function Committee for the Criminal Justice Section of the American Bar Association, I had the privilege of working with the National Association of Criminal Defense Lawyers (NACDL) last year on a jointly sponsored resolution to assure counsel for all accused during bail determinations and when a plea is entered. Previously, in February 2012, the Board of the NACDL, which has been at the forefront of this issue, approved a resolution to urge states and U.S. territories to guarantee counsel at initial hearings.

Through the process of drafting the Report, I reviewed studies that reflect that guaranteeing counsel during bail determinations has a direct impact on the staggering pretrial and post-conviction costs of incarceration that have a stranglehold on our system’s ability to work efficiently and effectively. As we stated in the Report, “ [u]ntil the financial crisis in our system is sufficiently relieved, it will be harder and harder to adequately tackle the constitutional and due process crises that continue to plague our system.”

The New York Times article is full of personal accounts of accused persons who were placed in a position of considering to accept pleas to get out of jail; it sheds a bright light on what is increasingly getting noticed as an embarrassing mark on our system. When I read the line in which the Judge told a Mr. Tomlin that getting out of jail after being held illegally for weeks on end was his “lucky day,” my blood started boiling, just like it has so many times before watching similar scenarios unfold in other courts across this country.

Guaranteeing counsel for all bail determinations won’t completely alleviate the problems addressed in the article, but it will go a long way in helping the problem. In fact, studies conducted over the past 15 years demonstrate that the presence of counsel during bail determination can directly loosen the strangling incarceration costs in this country. I wanted to add to this discussion by sharing some of the relevant research that we cited in the Report about the topic. Below are a few excerpts:

“In the United States 1 out of every 100 adults is incarcerated1 and 1 out of 31 adults is either incarcerated or being monitored under probation or parole.2 A highly significant number, roughly 12 million people annually, cycle through local jails while awaiting trial.3

A recent Prison Policy Initiative report observed,Jail churn is particularly high because at any given moment most of the 722,000 people in local jails have not been convicted and are in jail because they are either too poor to make bail and are being held before trial, or because they’ve just been arrested and will make bail in the next few hours or days. The remainder of the people in jail — almost 300,000 — are serving time for minor offenses, generally misdemeanors with sentences under a year.4

These pretrial jail detentions can be significant in length. In September 2014, the ACLU filed a class action lawsuit in Mississippi in response to the Scott County Detention Center’s practice of holding people for as long as a year without appointing counsel and without indicting them.5”

“A study published in the Cardozo Law Review in 2002 revealed that having defense attorneys at pretrial release determinations resulted in defendants being released on their own recognizance twice as often than if they were unrepresented.6 Further, bail was four times more likely to be reduced when attorneys were representing the accused.7 For the defendant, this translates into more than simply cost savings; having an attorney present at this hearing resulted in the median amount of time in jail being reduced to two days, versus nine days for unrepresented defendants.8

“Finally, a study released in 2012 by the New York City Criminal Justice Agency documents that defendants who are incarcerated pre-trial have worse outcomes than those who are released pre-trial.9 The study found that those who are detained are more likely to be convicted.10 If convicted, they are more likely to be sentenced to a term of incarceration, and if incarcerated their sentences are likely to be longer.”11

1 Jennifer Warren, Adam Gelb, Jake Horowitz, Jessica Riordan, One in 100: Behind Bars in America 2008, The Pew Center on the States ( Feb. 28, 2008)

2 Solomon Moore, Prison Spending Outpaces All but Medicaid, New York Times, p. A13 (March 2009).

3 Prison Policy Initiative, Mass incarceration: The Whole Pie (March 12, 2014), available at http://www.prisonpolicy.org/reports/pie.html.

4 Id.

5 Burks, et al v. Scott County, U.S. Dist. Ct. S. Dist. Miss. N. D. (September 24, 2014).

6 Douglas L. Colbert, Ray Paternoster & Shawn Bushway, Do Attorneys Really Matter? The Empirical and Legal Case for the Right to Counsel at Bail, 23 Cardozo L. Rev. 1719, 1755 (2002)

7 Id. at 1753

8 Id. at 1755.

9 Mary T. Phillips, A Decade of Bail Research in New York City, New York City Criminal Justice Agency (August 2012).

10 Id. at 18

11 Id. at 20.