Public defense advocate: Cash-bail system 'a mechanism for incarceration'

In “Lost in the System,” Fault Lines investigates the practice of pretrial detention—and how courts in U.S. counties are failing their poor citizens. The film premieres on Monday, Oct. 12, at 10 p.m. Eastern time/7 p.m. Pacific on Al Jazeera America. | Click here to find Al Jazeera in your area.

Half a million people in jail today might not actually be criminals. They’re behind bars, but they’ve yet to have their day in court, trapped in what’s called “pretrial detention.”

The time that elapses between an arrest and arraignment varies by county, and there are more than 3,100 of them in the U.S. In most localities, when a defendant appears before a judge, a cash bail is set, a portion of which has to be paid to be released from custody. For the poor who find themselves behind bars, posting bail often isn’t in the cards. So they continue to wait in jail as their cases go through the system.

“The cash bail system in this country was invented as a mechanism of release,” said Cherise Fanno Burdeen, executive director of the Pretrial Justice Institute, which advocates for fair pretrial practices in the criminal justice system. “It has flipped to be a mechanism of detention.”

Fault Lines spoke to Burdeen about the relationship between pretrial detention and mass incarceration, as well as alternatives to the cash bail system that are already in use (and appear more effective) in parts of the U.S. An edited version of the conversation follows:

Fault Lines: What gets you really upset about this issue of pretrial detention?

Burdeen: The existing system that sets cash bail amounts for the charge for which people have been arrested tends to over-detain low-risk people who are too poor to make those bond amounts. So you see, over the last 15 years, in fact, jail populations have increased, and almost 100% of that increase in the jail population is pretrial detention.

The other side of that is people using that same cash bail system to get out when we hoped they wouldn’t. So judges are often forced to set high bond amounts on people they think are too dangerous to be released. And we know from research that about half the time, people are making those bond amounts.

So then you have these two problems, right? You have jails packed with people too poor to get out, but not that dangerous. And you have the dangerous people who have access to friends, family, criminal enterprise that enables them to have that cash to get out.

Is this a relatively new problem?

I just described low-risk people being detained on bond amounts they can’t meet. Attorney General Robert Kennedy said the same thing 50 years ago. This is not a new problem. The quantity of the problem has gotten larger. What we know today that we didn’t know then—we suspected then, but we didn’t know quantitatively from research—is if you are detained as a low-risk person, when you finally get out, you are more likely to commit crime than if you had been released pretrial.

Can you paint a picture of the impact pretrial detention has on a person’s life?

We think there is at least three main factors that we know low-risk people have. They are the same probable low-risk factors you and I have. We have a stable job, we have housing and we have connections with family. And in the first couple days of jail, those things have a tendency to get disrupted very quickly.

You may have a job at a temp agency or a minimum wage job, where if you don’t show up for one or two of your shifts, or if you call in off those shifts, you are likely to lose that job. If you have family members that you are living with and staying with, your family gets very anxious and disrupted around this event. It’s very hard on the kids, which has an impact on the parents that have been jailed those first few days.

A lot of people talk about a crisis of mass incarceration. How would you explain the link between it and pretrial detention?

That is a great question. People often don’t understand the difference between jails and prisons, and use the words interchangeably. While you have prison populations in a state, the vast majority of mass incarceration is actually being experienced at the local level, in jails.

And jails don’t contain the people most people think they contain. My mother, for example, thinks that in the jail in our home county are people who have been sentenced to serve some kind of time in jail. But actually, two thirds of the jail population nationally are pretrial detainees.

And often the charges for which people are being detained in pretrial detention, the sentence wouldn’t have even been jail time. It would have been probation, for example. Only 6 percent of arrestees every year get ultimately sentenced to state prison.

How does pretrial detention impact a defendant's willingness to take a plea?

If you talk to public defenders all across the country, they will tell you, in that first initial meeting with their client, the client mostly says, “What do I have to do to go home?” And so that is sort of the foundation of those discussions. And we also know the longer time you spend in pretrial detention, the more likely you are not just to take the plea, but the more likely you are to get a sentence—and to get a sentence that includes incarceration.

Holding all else constant, two defendants who by all accounts everything about them is the same, come to their hearing for their case: One was able to secure pretrial release, and one spent that time in pretrial detention. Research shows that similarly situated defendants like that will get different outcomes: The one that comes to that sentencing hearing from being out on pretrial release is less likely to get a sentence of incarceration than the person who comes from the jail.

I have informally talked to judges about this, and they say, “Listen, we are people, too. It is far harder to take someone off the street and put them in shackles and have them led away at that hearing than it is to return someone put someone back to their cell.”

But then we come back to the issue of not being able to afford bail. Are there no protections for people pretrial?

So the 8th Amendment protects you from excessive bail. So over the decades, many many decades, that has been interpreted as “You have a right to a bail amount you can meet.”

And the word bail has often been misinterpreted to be the same as cash bail or bond. And so, in jurisdictions where bond amounts are used, which is in most places, the conversation has almost always been around the 8th Amendment of, “Can you afford that bail amount?” as opposed to what the Supreme Court ultimately decided to be the case in the 60s or the late 50s, which is, “That’s not what the 8th meant at all.”

The state, the government, has no right to impose upon you any condition or set of conditions beyond which would reasonably assure your appearance in court. Not guarantee. Not ensure. But reasonably assure, which implies some level of risk needs to be tolerated in our communities. We should be taking some risk because the presumption of innocence is part of your legal right in this phase.

We don’t run debtors' prisons. You can’t be in prison simply because you are too poor to pay bond or fines or fees.

Does the current cash bail system impact the representation that defendants get?

We know from a recent survey of the Federal Reserve that most people faced with an emergency would have a very hard time coming up with $400 in cash. About half of Americans could not come up with $400 in cash. So if you’re faced with a bond amount, and you are choosing between rent, food and this bond amount, it also means you are not likely to retain counsel. Most defendants would qualify as indigent in this country, and most people are using the public defender system.

We have about 11 million arrests in this country in a given year. And most are indigent defendants, people who wouldn’t be able to come up with money for a private counsel. So that volume is all flooding into the public defender system. Caseloads are high. And there is a pressure in all parts of the system to dispose of cases quickly, to keep the system moving. That often results in quick plea negotiations, and if you have served a week, two weeks, three weeks pretrial detention, you get hungrier and hungrier and hungrier for that plea deal. And if you can go home that day, then you take that plea deal. So all of these components are sort of a perfect storm in creating a system that produces lots and lots of convictions.

So how do we fix the system?

Oh, I’m so glad you asked. This is one of the reasons I love working on this issue. As opposed to other places in the criminal justice system where the problems are hard to identify, pretrial is so easy.

We know the problem. The problem is we use an antiquated offense-based and cash-based system. We know it results in detention, and detention has bad outcomes. And the solution is really simple. It is three-fold, we say. The first thing is reducing the number of bookings to begin with. There are many jurisdictions that use citations instead of arrests. In New York, they are called desk-appearance tickets. It’s identifying a class of crimes, or offenses, for which the law enforcement officers can give someone a ticket and say, “Here’s the court date. Show up for this court date and settle your case.”

But you need to know who is safe to cite and who should be booked in. And that’s where field-based assessment is part of the solution—a very simple three-question risk tool that aids officers in understanding who is safe to cite.

Then once you get actually to the booking process, the solution there is also very simple. It is to use a validated risk-assessment instrument that helps courts know who is a good risk, who is likely to come back to court and at what rate. So people who pose low risk for failing to appear, have about a 95 percent chance of showing up to court. I have a 12-year-old son. If he brings in a 95 percent on a test, that’s high fives all around the table. So that’s a good risk.