The Bail Book - A Comprehensive Look at Bail in Americas Criminal
The Bail Book - A Comprehensive Look at Bail in Americas Criminal
The Bail Book - A Comprehensive Look at Bail in Americas Criminal
Spring 2017
Recommended Citation
Baughman, Shima B., The Bail Book: A Comprehensive Look at Bail in America's Criminal Justice System - Introduction, Cambridge
University Press (2017)
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Introduction
Bail is the temporary release of a person awaiting trial for a crime. This simple
decision – to detain or release a defendant – is made all over the United States in
courtrooms every day. It is a decision that often takes less than five minutes, does
not require evidence, and usually only involves one lawyer and a judge. But
what happens during those five minutes tells a significant story about criminal
justice in America.
The story of bail is one that most heavily impacts poor individuals. Consider
these three bail scenarios. James, a teenager, was accused of stealing a bus
pass. After police arrested him, the court set a $1,500 bail that neither he nor
his family could afford. He remained in jail until he could negotiate a plea
with the prosecutor. Another teen, Kenny, was charged with receiving stolen
property. The prosecution suggested her bail be set at $150, but the court set
bail at $300. Kenny spent five days in jail awaiting trial since she did not have
the money to be released.1 A homeless man, Leslie Chew, who was living
out of his car, was arrested after he walked into a convenience store and took
four blankets to keep him warm on a cold night. Chew was arrested for theft
and his bail was set at $3,500. A bail bondsman offered to cover it for $350,
but Chew did not have enough even for that. Chew was in jail pending trial
for eight months, costing Lubbock, Texas, taxpayers $9,210. Chew took a plea
deal and pled guilty to felony theft.2
In contrast to these bail scenarios, consider three other very different
ones.3 A prominent foreign diplomat is released relatively quickly on bail
and remained on house arrest after allegedly violently sexually assaulting a
hotel maid. A wealthy husband and wife charged with brutally assaulting –
including starving, beating, and torturing – two young maids are allowed their
freedom on bail because they secure private bail guards. And finally, a well-
known mob boss is released on $10 million bail, with an electronic bracelet,
and remains in his extravagant mansion pending trial. These six real-world
1
2 Introduction
examples demonstrate that the inequities of bail are real. Poor defendants,
who have committed minor, nonviolent crimes, are held in jail before trial
while rich defendants charged with serious and sometimes violent crimes are
released pending trial. Bail is not just a matter of abstract criminal justice
policy, but a practice with real effects on real people. Indeed, these accounts
demonstrate that the story of bail is one of poverty, inequality, and haste.
It is also a tale of important constitutional rights lost and judicial discretion
misused. And importantly, bail is the single most preventable cause of mass
incarceration in America.
America is one of only two countries in the world that requires individuals
to pay money to be released on bail awaiting trial. In most countries in the
world, it is a constitutional right for most defendants to be released on bail
awaiting trial. And even in America, the right to bail historically and constitu-
tionally was available not just for the wealthy.
Bail rights should not be sold to the highest bidder but instead available for
all of the accused. But today, average Americans struggle to meet bail and feel
the repercussions and inherent inequity of the current bail system. Kenny and
James are only 2 of the 27,000 juveniles held on bail in detention centers every
day who cannot afford to be released.4 In some areas, less than 10 percent
of defendants can pay bail of less than $1,000. In New York, for instance,
only 12 percent of defendants will make bail at their arraignment; the rest will
remain incarcerated.5 The cost of receiving freedom before trial results in
many individuals sitting in jail before they are found guilty of any crime.
This volume provides a glimpse into the reality of bail and mass incarcer-
ation. It explores the inequities of bail for the poor, discusses racial and cost
implications, and explains why bail is so important for a defendant’s case. This
book focuses on constitutional and empirical issues. In particular, it demon-
strates that historically bail has been a constitutional right and that empirical
evidence tells us judges could safely release up to 25 percent more defendants
before trial. In short, this book shows how we can preserve bail as a constitu-
tional right by releasing more defendants, without increasing crime rates.
From medieval times to the modern day, the concept of bail has been
a mainstay of the law. Bail is the means through which accused criminals
can obtain release from police or state custody before trial and after arrest.
Traditionally, bail was some form of property (such as money) deposited or
pledged to a court to persuade it to release the accused on the understanding
that he will return for trial or forfeit the money. The principle of bail grounds
itself in constitutional rights of liberty and due process. It also stems from the
presumption of innocence that proclaims that all should be deemed innocent
until proven guilty at trial. The presumption of innocence and the right to
Introduction 3
due process guarantee that a person will not be punished or lose their liberty
before they face a trial. Therefore, every individual maintains a right to be
free until a jury determines their guilt. And the Sixth Amendment of the US
Constitution guarantees that a jury determines a person’s guilt after a fair trial
with evidence. These constitutional principles are deeply rooted in English
and American law and preserve the constitutional right to bail.
The US criminal justice system has long recognized the constitutional
importance of providing bail. The First Congress applied this broad protec-
tion to all noncapital offenses and left discretion to the judiciary for capital
offenses.6 Through the twentieth century until the 1950s, the Supreme Court
protected the right to bail, even for communists who were the biggest national
security threat at the time. For instance, when the government tried to prevent
release for high-profile communists by demanding high bail amounts in Stack
v. Boyle, the Supreme Court intervened, claiming that the government could
not use expensive bails to deny individuals the constitutional right to release.7
However, bail law started to shift with the first bail “reforms” of the 1960s. The
Bail Reform Act of 1966, which still presumed release in noncapital cases,
opened the door to individuals not receiving release on bail if a judge con-
cluded they were likely to be found guilty. Then, the Bail Reform Act of 1984
further diluted the right to bail by allowing, for the first time, a defendant to
be denied bail based on the likelihood of future criminality.8 At the time, this
new authority to detain individuals who were “dangerous” before trial was
seriously controversial given the constitutional right to bail.
However, the Supreme Court quickly upheld this new requirement –
future dangerousness – as a constitutionally valid reason for denying bail. The
Court in United States v. Salerno held that “liberty is the norm,” and deten-
tion before trial is the “carefully limited exception.”9 According to federal
statutes, the norm is that people charged with a crime should be released
before trial10 and the government bears the burden of proving that a defendant
should be detained pretrial.11 Despite the supposedly limited nature of the
1984 bail reform policies, in the years since the 1984 reform, pretrial detention
has become the norm rather than the exception.12 It has become the norm
not only in the federal system, but also in most states that have copied this
bail scheme.
These significant changes in the latter part of the twentieth century are
at odds with the long-standing principle that bail is a constitutional right.
An oft-repeated value of US criminal justice is that all are innocent until
proven guilty at trial. But our system has evolved into one where judges are
allowed to predict which defendants are guilty and dangerous, and then to
detain those people long before trial; and that detention ultimately results
4 Introduction
the U.S. Bureau of Justice Statistics, 95 percent of the jail growth since 2000
has resulted from an increase in inmates held without bail.23
Besides arrest, bail is the most important criminal justice decision made
today. The decision to deny or allow bail means more for a defendant’s
fate than any other decision besides arrest. This simple ability to afford bail
determines whether the defendant loses her job or keeps it. Most criminal
cases (95 percent or more) do not go to trial. In these cases, the decision to
release someone from jail or detain them means everything for a case. If a
judge denies a person bail, that person is more likely to lose their case and be
detained for a longer period of time, simply based on whether they can pay
bail or not. Defendants detained before trial are more likely to be convicted if
they go to trial, four times more likely to be sentenced to jail, and three times
more likely to receive prison sentences than similar people released pretrial.24
Additionally, given their weak bargaining power with prosecutors while locked
up, when jail or prison time is imposed pretrial detainees receive longer sen-
tences regardless of the crime they are charged with and the evidence against
them. In addition, their jail sentences are nearly three times as long, and
prison sentences are more than twice as long.25
Detention leads to more detention, even among those who claim inno-
cence. Consider the case of Shadu Green, who was arrested for speeding.26
Officers claim that Green was belligerent and resisted arrest, but Green
insisted that officers attacked him and proclaimed his innocence. The judge
posted bail at $1,000, and a bondsman offered to cover it for a $400 fee. Green
didn’t have the money to pay bail and was sent to jail. The prosecutor offered
Green sixty days in jail if Green pled guilty. Green maintained his innocence,
he didn’t want the charge to show up on his record, and wanted to assert his
right to a trial by a jury of his peers. Green spent over half of the sixty days in
jail before his girlfriend was able to pay the $400 fee for the bail bondsman.
When Green was interviewed after his experience in jail, he recognized that
if his girlfriend had not been able to come up with the bail money he would
have settled and pled guilty for a crime he did not commit. He had no leverage
in negotiating a favorable agreement while he was detained. Because he made
bail, he continued to assert his innocence, and he was eventually found not
guilty at trial. This is not an uncommon scenario. Marty Horn, the commis-
sioner of New York City’s jails, reported that he had seen this kind of situation
play out over and over: “Individuals who insist on their innocence and refuse
to plead guilty get held . . . [b]ut the people who choose to plead guilty get
out faster.” Not only do defendants who cannot afford bail plead guilty to get
out of jail faster, they also often receive and accept harsher punishments than
those who are released before trial.
6 Introduction
As a result, prosecutors have an incentive to ask for high bails to ensure that
defendants will remain behind bars.
In addition to the difficulties of negotiating with prosecutors while detained,
an important constitutional concern is that defendants have little to no access
to their lawyers while held without bail. Indeed, recent news accounts demon-
strate the difficulty of defendants in communicating with counsel while in
jail before trial. Busy attorneys who cannot visit their clients often must resort
to discussing case matters over the phone or email. Those modes of com-
munication are not secure, resulting in prosecutors gaining access to these
privileged exchanges. When a defendant in pretrial detention is unable to
communicate openly with her attorney, she is also less able to assist in her own
defense. This inability to assist in the preparation of trial deprives defendants
of important constitutional rights of due process, access to counsel, and the
right to a fair trial. Some jails who used to screen lawyer emails and letters as
attorney–client privileged claim they no longer have resources for screening
and end up reviewing them all and disclosing the attorney information to
prosecutors. Defendants are at a severe disadvantage when prosecutors have
a sneak peek into their case before they reach court. There have even been
instances in Brooklyn, New York, where prosecutors have read communica-
tions between defense attorneys and the accused and presented them against
defendants in court.31
Defendants often lack access to any lawyer during this key pretrial period.
About half of the local jurisdictions in this country do not provide counsel
for indigent defendants at pivotal bail hearings. Bail hearings take one of
two different forms. In some of these jurisdictions, a judicial officer presides
with neither a prosecutor nor defense counsel present. Others have a judicial
officer presiding and prosecutor participation, but no defense counsel.32 In
these jurisdictions, the defendant has no one to speak on their behalf. A recent
study found that defendants who were provided counsel at bail hearings fared
significantly better than a similar group of defendants who were not provided
with counsel. Additionally, defendants who had counsel reported greater satis-
faction with the bail process, including a sense that they were treated respect-
fully by the judge, and that the judge considered a great deal of information
when making the bail decision.33 Since pretrial detention has such serious and
negative consequences for people in terms of the criminal justice outcomes
at sentencing, defendants should have access to an attorney to preserve their
constitutional right to bail.
The costs of incarceration, in general, and bail, in particular, are also a
great burden on society. Spending on incarceration has increased dramatically
over the last several decades. Over the past three decades, between 1979–80
8 Introduction
and 2012–13, state and local expenditures for corrections quadrupled from
$17 to $71 billion34 – and spent an estimated $9 billion just on housing pretrial
detainees.35 According to William Stuntz, even when adjusted for inflation,
spending on corrections from 1971 to 2002 rose 455 percent. Institutions of
higher learning and prisons compete for state funds, and prisons are winning.
This burden caused by pretrial detention has serious consequences in many
states, like California, that spend more on prisons than schools. In California,
for example, 10 percent of the state general fund went to higher education
and 3 percent went to prisons thirty years ago. In 2010, 11 percent went to pris-
ons and 7.5 percent to higher education.36 Today, per-inmate spending in the
state is $70,836,37 compared with per-student spending of $18,050.38 And other
states are not too far behind with current statistics showing that even when
population changes are factored in twenty-three states increased per capita
spending on corrections at more than double the rate of increases in per-pupil
educational spending.39 In sum, the costs of incarceration for individuals not
released on bail are a massive burden on many state and local economies.
The individual costs of not obtaining release on bail are also significant.
Individuals who are held on bail are often not convicted later and pose no dan-
ger to the public, but simply lack the funds to get out on bail. Consider the case
of Perchelle Richardson, a seventeen-year-old high school student who, after
the devastating impact of Hurricane Katrina, was a year behind in school.40
When Perchelle allegedly took an iPhone from her neighbor, she was arrested,
charged with felony burglary, and sent to jail. At her arraignment, the Judge
issued a $5,000 personal surety, assuming Perchelle would be released from
detention the following morning. However, New Orleans has a $200 adminis-
trative fee for all personal sureties. Perchelle’s family was not able to raise the
$200, and as a result this young high school student remained in jail pretrial for
51 days. Perchelle’s family, who relied on Perchelle for childcare, had to find
alternative living arrangements for the other children. Perchelle fell behind in
her studies and spent her pretrial detention detached from family and friends
and among individuals who were charged with serious crimes.
After fifteen days, the prosecutor simply dropped the charges. Perchelle was
never convicted. She spent fifty-one days in pretrial detention, at immense per-
sonal costs and costs to her family, simply to have the case dropped. Perchelle
is not alone, her case highlights an extremely common problem of individ-
uals facing serious personal and financial consequences because they can-
not afford bail. The city of New Orleans alone pays $10 million each year to
hold pretrial detainees. These individuals take up almost half of the jail beds
and place a significant strain on the infrastructure. Between 2010 and 2011,
in New Orleans, 95 percent of the people booked into jail were never sent
Introduction 9
defendants will commit future crimes. They claim that prediction leads to
minorities being treated unfairly. Others complain that racism results from
misused discretion. This book explores where racial bias enters the criminal
justice system through an empirical analysis that considers the impact of race
in the bail decision.
Bail is the hidden key to cutting mass incarceration in America. Individuals
have the constitutional right to release but yet are caged like criminals before
conviction, leading to mass incarceration in our jails. As Judge Kozinski points
out, and we often forget, pretrial detainees “are ordinary people who have been
accused of a crime but are presumed innocent.”43 The decision of whether
to release a person on bail has immense consequences for an individual as
well as for society. This important decision calls for a more empirically rooted
decision-making mechanism. And one that takes into account the evidence,
costs – and more importantly the constitutional implications – of incarcerat-
ing millions of people who have not been convicted. With firm constitutional
grounding and consideration of empirical methods, this book traces a path for
future bail reform that explains how jurisdictions can take a few simple steps
to reduce incarceration pretrial while cutting pretrial crime.
The chapters that follow discuss several important issues surrounding bail.
They cover a brief history, explain the bail process and the constitutional
rights surrounding bail – including due process, and the Sixth Amendment
and Eighth Amendment rights in detail. In addition, this volume lays out
empirical evidence about prediction in the pretrial context, racial bias in bail
decisions, and the costs of detention to society and a defendant. Other chap-
ters cover an international perspective on bail, consider how pretrial detention
is handled for terrorism crimes, and explore the unique challenge of money
bail. The final chapter concludes with the important principles for an opti-
mal bail system and describes practical changes that jurisdictions can make to
achieve it. A brief description of each of these chapters follows.
decisions about guilt before trial as guilt was properly determined during trial.
Under the common law, the entire purpose of bail was to ensure that a crim-
inal defendant would appear for trial. Early US law largely followed English
law by requiring bail to be presumed for all but capital defendants, where
there was significant proof that the person committed the alleged crime. The
guarantee of returning to court did not provide any sort of protection against
the defendant committing other crimes, as this was not the focus of bail. The
focus of bail changed, starting in the 1940s and particularly in the 1960s–1980s,
as the presumption of bail was often not respected and judges were allowed
to weigh evidence against defendants in determining whether to release them
and consider additional factors in determining whether to release a defendant
on bail. This chapter traces these historical changes to highlight the changes
that have led us to the current bail model, which aims to prevent danger a
defendant may pose to the community.
the US criminal justice system. It briefly describes each type of release and
discusses the procedures for obtaining release on bail in America. The various
types of pretrial release discussed include release on recognizance, supervised
release, money bail, property bail, conditional release, surety bail, and deposit
bail. It highlights how the different types of release respect a defendant’s
constitutional right to bail.
they pose a danger too great to be released? This chapter demonstrates that
suspected terrorists do not have a constitutional right to pretrial release. Bail
laws applicable to other dangerous defendants prohibit suspected terrorists
from obtaining pretrial release. But there are a handful of other federal laws
(Special Administrative Measures, Patriot Act, etc.) that also provide justifi-
cation to detain suspected terrorists pretrial and to limit their communica-
tion and rights vis-à-vis the outside world. Some terrorism suspects have been
detained in military centers, like Guantanamo, and while these detentions
have been criticized greatly, detaining these individuals safely on US soil pre-
sents substantial budgetary and security challenges. As a whole, however, after
detention, terrorism suspects have been tried successfully in federal and mili-
tary courts, with greatest success in federal courts, given the plethora of federal
statutes available to charge defendants.