Forcing the accused to purchase their freedom creates a two-tiered system of justice

December 17, 2019 7:00 am

Behind bars. Credit: David McNew/Getty Images

Bail reform has received a lot of buzz lately.

Numerous states have implemented or are studying ways to make pretrial release systems more fair and effective, while improving public safety.  Taxpayers are saving tens of millions of dollars otherwise wasted by keeping people unnecessarily locked up. So far, Florida is behind the curve.

Monetary bail – also known as bond – is designed to ensure that individuals who are arrested will appear in court for their scheduled court date.

In order to benefit from our current bail system, individuals who have been charged with crimes, but have not yet had their day in court and have not been found guilty of any wrongdoing, must pay approximately 10 percent of the total bond issued by the court to a bondsperson in order to return to their lives and families, pretrial.

The underlying premise is “come back or lose the money,” but the devil is in the details, as those relying on bondsmen lose their money regardless. The 10 percent is not returned, even if the person complies with the terms of release and/or is found not guilty.

This raises significant concerns over who actually benefits from this system. Should an individual who has not been convicted of any wrongdoing have to pay in order to secure their freedom pretrial?

If so, how much should a presumed innocent person have to pay and why shouldn’t they be refunded if found not guilty? Should their ability to pay, or ability to rely on a bondsperson and forfeit the money altogether, dictate their freedom?

These questions matter. In a system that relies on monetary bail, freedom is often only afforded to the wealthy, and the consequences for everyone else can be enormous. Being held in jail for an offense not yet proven can result in a person losing their job and have a devastating effect on kids and families.

Without a job comes the loss of a home, car, and the means to find another job. Kids who experience the trauma of incarcerated parents face increased health and social risks, not least of which is the increased risk of being arrested themselves.

Meanwhile, wealthy individuals, for whom posting bail is financially easy to accomplish without the use of a bondsperson, are free to return to their lives, not facing the life-altering consequences of pretrial incarceration. A wealthy person will get their entire self-posted monetary bail back, so long as there are no arrests for a new crime while on release.

All of this – for a person who should first be deemed innocent. If you are unable to pay, you are held in jail before being proven guilty. Shouldn’t jail come after guilt? That is the definition of “innocent until proven guilty.”

The judge must consider the potential danger the accused presents to the community, then gauge whether they are likely to flee. They also should consider their ability to pay – but in the vast majority of cases do not. Public defenders in courtrooms across the country sound the alarm daily about unaffordable bail: “Your Honor, you just appointed the public defender to represent my client and then set  bail that they clearly cannot afford. This ensures they will remain detained.

Even when an accused can afford to post bail, monetary bail does nothing to protect the community. It makes little sense to release dangerous rich people, while detaining low-risk people of limited means. Protection of victims is why the risk aspect is examined by the judge.

If a defendant is released, generally they must stay away from the victim(s) or face additional charges. Victims should and will get their day in court. The only difference is the mechanism of the defendant’s release.

We also need to surround people who are released with programs so that individuals can access community services that are much-needed and are proven to reduce recidivism.

In Florida, we have “pretrial services” run by corrections departments of each individual county. In the past, Florida pretrial services provided critical assistance to help address the root causes of a person’s entrance into the criminal justice system. Unfortunately, due to decades-old budget cuts – funds that were never returned – the only service provided is requiring people charged with an offense to check in on a regular basis before trial.

By comparison, in New York, the Center for Court Innovation’s Supervised Release Program has given 1,900 people per year the ability to improve themselves while awaiting trial.

Participants meet regularly with a social worker, receiving referrals to mental health, substance abuse, and vocational and employment services. These services are all critical to address the root causes of why people enter the system, and ensuring that they do not return – which is beneficial for everyone.

These services cost money, but nowhere near what it costs Florida counties to keep defendants in jail, providing shelter, food, medical services, and security.

The Florida Legislature should fully fund pretrial services so that individuals can have access to true services – regardless of how much money they have.

Despite national trends  away from using cash bail, Florida has stayed stuck behind the curve on criminal justice reforms that actually make communities safer without wasting lives and devastating families in the process. In Florida, certain legislators are unwilling to follow evidence-based research and studies that prove alternatives to cash bail work in our communities.

It is this fear and lack of initiative that is keeping Florida behind other states in the nation, many of which have already made significant and important changes to pretrial services and ending cash bail.

As for money, the Florida bail bonds industry has deep pockets and funds candidates who support continuing a failed system. It’s time to put fairness and savings for Florida taxpayers ahead of profits for an obsolete industry. The Prison Policy Institute indicates the following about the bond industry nationally:

Bail bond companies … collect $1.4 billion in nonrefundable fees from defendants and their families. The industry also actively works to block reforms that threaten its profits, even if reforms could prevent people from being detained in jail because of their poverty.

What can you do? Ask your local state attorney, public defender, and legislators whether they support reforming our bail system to ensure that there is not a two-tiered system of justice.

Our current cash bail system allows wealthy individuals to buy their freedom, while keeping individuals with lesser means behind bars.

Call upon your representatives to reform this ineffective, unjust, and harmful system.

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Melba Pearson
Melba Pearson

Melba Pearson is the Deputy Director for the ACLU of Florida. Before joining the ACLU. A New York native, has called Miami home for close to 20 years. After receiving her undergraduate degree at New York University, she completed her studies at Hofstra University School of Law. Before joining the ACLU, Ms. Pearson was an Assistant State Attorney in Miami-Dade County for 16 years.