After arrest, defendants usually see a judge within 24 hours. They will enter into a plea (guilty, not guilty, no contest.) The judge will decide what will happen to the arrestee until trial, taking input from the defender and prosecutor.
In order to decide whether or not to release the defendant pending trial, they consider some of the following things:
whether the defendant is a danger to the community
the defendant’s criminal record
the defendant’s ties to the community (how long he has lived in the community and whether he has family nearby)
whether the defendant is employed in the community and for how long
whether the defendant has any history of failing to appear for court.
Some of the options include:
Released with citation:In some cases, an officer will not book a suspect at all but will instead issue a citation saying that the accused must appear in court.
Remand: The court holds the defendant without bail until the conclusion of the trial.
Release on the defendant’s own recognizance: Being released on your own recognizance (ROR) means you are released on the promise to report back for trial and any other court proceedings in your case. Courts usually release defendants ROR only in minor criminal cases or when the defendant has a minimal record of prior offenses, if any, and a permanent local address and employment.
Bond or bail: If the judge requires that a defendant post bond or bail, the defendant must post money with the court in order to be released pending completion of the case. The court can require a cash bond or a surety bond. If the bond is cash only the defendant must post that amount with the court. Those who cannot afford bail must choose between jail and reliance on a commercial bail bondsman. Under New York law, bondsmen can charge a fee of up to 10 percent for bail set under $3,000 and only six percent for any amount above $10,000. If the court allows a surety bond, a bondsman or bail bondsman is permitted to deposit a percentage of the bond amount with the court with a contract that the bondsman will pay the balance of the bond if the defendant does not appear for court and cannot be located. The defendant must pay the bondsman a nonrefundable portion of the bond and provide collateral – such as a deed to a home or other piece of real estate – or a co-signer, or both, to guarantee his appearance. The bondsman keeps this payment regardless of the outcome of the case. This compensates for the risk taken by sponsoring an accused criminal — since if that person doesn’t show up to court, the bondsman must fork over his or her bail to the government. If the defendant disappears and the bondsman is required to pay the bond to the court, the bondsman can collect that money from the co-signer or take possession of the collateral.
Other conditions: In addition to ROR or requiring the defendant to post bail, the court can impose other conditions of release on the defendant, including no contact with witnesses, no use of drugs or alcohol, no association with other defendants, no new arrests, no association with known criminals, no possession of weapons, and no travel outside the county or state. If the defendant violates any of these conditions, the court can rescind the ROR or bond and remand the defendant.
Supervised release: In addition or as an alternative to setting a bond or other conditions of release, the court can place a defendant in a supervised release program while the case is pending. In some states, this is known as pre-trial supervision and is similar to being on probation while your case is pending. You will be required to report to a probation or other supervising officer and to comply with any conditions the officer sets such as the ones listed above.
the problem with bail
Originally, bail was supposed to make sure people return to court to face charges against them. But instead, the money bail system has turned into widespread wealth-based incarceration. Poorer Americans and people of color often can't afford to come up with money for bail, leaving them stuck in jail awaiting trial, sometimes for months or years. Meanwhile, wealthy people accused of the same crime can buy their freedom and return home.
Across the country, money bail is set at levels that are far too high for many people or their families to pay. Nationwide, more than 60 percent of jail inmates are jailed pretrial; over 30 percent cannot afford to post bail. Defendants face a choice: sit in jail as the case moves through the system; pay a nonrefundable fee to a for-profit bail bonds company; or plead guilty and give up the right to defend themselves at trial. For poorer families, paying this fee can be a significant hardship. They won’t ever get the money back regardless of the outcome of the case – even if the arrest was a case of mistaken identity and no charges were ever filed. Being jailed pretrial has collateral consequences: It leads to people losing their jobs, not being able to care for their children, and losing contact with loved ones.
Racial bias is another issue. Black and Hispanic defendants are much more likely to be held on bail than white defendants. As American University law professor Cynthia E. Jones found in her review of the evidence "nearly every study on the impact of race in bail determinations has concluded that African-Americans are subjected to pretrial detention at a higher rate and are subjected to higher bail amounts than are white arrestees with similar charges and similar criminal histories."
Bail can be a form of coercion. When bail and pretrial detention seem too costly, a quick plea can look like a path back to your old life. So if you can't afford bail, and you fear that remaining in jail until trial may cost you your job, or hurt your family, then a confession starts to look like the easiest way out — regardless of whether you are guilty. New York City looked into the numbers in 2012. Not only did researchers find a strong connection between pretrial jail time and the likelihood of conviction, they concluded that detention itself "creates enough pressure to increase guilty pleas."
Often, those being held on bail have simply been accused of low-level offenses. Seventy-five percent of pretrial detainees have been charged with only drug or property crimes. Holding people in jail who do not pose a significant safety risk also exacerbates overcrowding, creates unsafe conditions, and places a huge financial burden on taxpayers. This bail system has increased the jail population and made America's incarceration problem worse. According to a report by the Vera Institute for Justice, the number of annual jail admissions doubled in the past three decades to 12 million, and the average length of stay increased from 14 to 23 days. There are significant costs to taxpayers as well. Incarcerating individuals awaiting trial costs taxpayers $13.6 billion each year. There are effective, low-cost ways of ensuring that defendants appear at trial, including a simple notification system that reminds people of their court dates. We also know that people are more likely to be acquitted if they pay bail, in part because they are less likely to take plea deals just to get out of jail. Being released before trial closely correlates with a not-guilty verdict, suggesting that the system is not punishing the most guilty, but rather the people who cannot afford to pay for their release. One study even suggests that those people are “over three times more likely to be sentenced to prison” and “over four times more likely to be sentenced to jail” than those who are not detained pretrial.
solutions & alternatives
States across the country are experimenting with different ways to improve the bail process.
One approach is to add evidence and rigor. Currently, judges and bail commissioners have a lot of latitude, which can lead to inconsistent rulings and allow for unconscious forms of racial bias.
Many criminal justice reform groups have been pushing for better risk assessment tools, using questions proven to predict whether a given defendant is likely to skip out on court. Kentucky has embraced this approach, and so far it has dramatically reduced its reliance on bail while still keeping track of defendants.
Other initiatives that sidestep bail include problem-solving courts and diversion programs. They replace fines and jail with programs that help defendants, such as drug treatment, and mandatory community service.
Elimination of bail
A handful of states have gone further, eliminating bail entirely and relying on other forms of monitoring, like check-ins with probation officers or "unsecured bonds," which are like tailored fines for people who don't appear.
Alaska, a largely Republican “tough on crime” state, drastically curtailed cash bail. The new law, which took effect on Jan. 1, 2018, sought to stop the rapid increase in the state’s incarcerated population, which grew by 27 percent between 2005 and 2014. The law created a pretrial enforcement division to determine, on a case-by-case basis, the likelihood that a defendant will show up in court or commit crimes if released. The judge reviews the risk assessment score, but prosecutors and defense attorneys can argue for harsher or lighter restrictions before the judge makes a decision. The judge can impose secured bail bonds only for individuals charged with violent offenses and with high risk scores, while those charged with nonviolent misdemeanors must be released. For all others, there is a presumption of release.
Washington, D.C. largely eliminated cash bail in 1992, and now holds only those defendants deemed too dangerous to release. About 90 percent appear for their court dates. The Washington Post’s editorial board explained that although revamping pretrial release systems that rely on cash bail may involve upfront costs, it is a worthwhile and necessary investment. “In the longer term,” the editorial stated, “bail reform will produce substantial savings by reducing incarcerated populations, cutting corrections staffing and eliminating the need to build more jails to house pretrial detainees. Even if the balance sheet tilts toward an additional burden for states and localities, bail reform needs to happen because it’s the right thing to do. It is a disgrace for a civilized society to lock people up for no reason other than they lack the means to go free.” Prosecution
Prosecutors have the ability to reduce the use of cash bail. While judges have the ultimate decision, prosecutors play an important role in the process and can advocate for bail reform, screen cases early, and establish a presumption of recommending release.
Fair and Just Prosecution, a group that brings together local prosecutors to promote “a justice system grounded in fairness, equity, compassion, and fiscal responsibility,” urges all prosecutors to “publicly support the elimination of money bail. DAs should use their bully pulpit to communicate the harms of the money bail system and the need for reform.” Miriam Krinsky, executive director of FJP, says: “Common sense dictates that people should not be held in jail simply because they cannot afford a monetary payment.”
In June 2017, Kim Foxx, the lead prosecutor for Chicago, announced that her office will no longer seek money bail for defendants accused of low level offenses. According to Foxx, “Routinely detaining people accused of low-level offenses who have not yet been convicted of anything, simply because they are poor is not only unjust — it undermines the public’s confidence in the fairness of the system.”
Harris County, Texas, District Attorney Kim Ogg supported the elimination of bail for people accused of misdemeanors and wrote a brief from her office supporting the use of pretrial assessments for those accused of low level crimes.
The California attorney general also wrote a brief supporting the elimination of the cash bail system in California.
In February 2018, newly elected Philadelphia District Attorney Larry Krasner announced that his office would stop seeking bail on 25 criminal charges, which include retail burglary, prostitution, unauthorized use of a motor vehicle, resisting arrest, providing false identification to law enforcement, and many drug offenses.
Bail funds
While not a long-term solution, bail funds provide short-term help to alleviate the burden of excessive bail on the poor. They are nonprofit organizations that front bond payments for those who cannot afford them.
On Mother’s Day 2017 and 2018, several organizations partnered to create a Mama’s Bail Out Day campaign to pay bail for women to see their children. Similar bailouts are happening around the country. The Bronx Freedom Fund grew out of the local public defender’s office and has bailed out more than 600 people charged with misdemeanors since 2007. Other similar funds have been established in major cities around the country.
Some places, like Memphis, Tennessee, automatically charge bail funds fines and fees, making bail fund efforts difficult to sustain. The Massachusetts bail fund was struggling financially until activists recently pitched in to help revive it.
Courts actions
Courts are striking down existing bail systems as unconstitutional. Challenges to existing systems are pending in local courts around the country, in both red and blue states. State attorneys general and other members of law enforcement are also recognizing that cash bail hurts the poor.
In Dutchess County, New York, one judge became impatient with the bail reform process and issued an opinion piece attacking the money bail system. Police had arrested Christopher Kunkeli for shoplifting a vacuum cleaner from Target, a misdemeanor. A lower court judge ordered his bail set at $5,000, nearly half his annual income. Kunkeli remained in jail for nearly five months until he agreed to a plea deal. After Kunkeli’s release, the New York Civil Liberties Union filed a lawsuit on his behalf, contesting the court’s practice of setting bail without considering a defendant’s ability to pay. On Jan. 31, 2018, Justice Maria Rosa ruled that this system violates the Constitution’s due process and equal protection clauses. In her ruling, she noted that in New York, 60 percent of individuals are held in jail without a conviction, before their cases go trial; in New York City, that number is as high as 75 percent.
Bail would also become less of a problem if judges simply used alternatives to cash bail already on the books, Ms. Luongo explained. For instance, judges can make bail conditional on defendants first missing a court date.
Supervised release In March 2016, New York implemented a citywide program called supervised release. It resembles parole: instead of jailing people who cannot post bail, a judge can let them go free on the condition that they agree to meet with a social worker one to four times a month and maintain regular phone contact with that person until the outcome of their case.