—U.S. Attorney General Robert Kennedy
The U.S. Supreme Court has affrmed the pretrial process as “perhaps the most critical period of the proceedings”, United States v. Wade, 388 U.S. 218 (1967) so the impact of ability to post bail during this time is of particular importance. On any given day, 60 percent of the U.S. jail population is composed of people who are not convicted but are being held in detention as they await the resolution of their charge. This time in detention hinders them from taking care of their families, jobs and communities while overcrowding jails and creating unsustainable budgets. In 2011, detaining people in county jails until their court dates was costing counties, alone, around $9 billion a year. Eric Holder, “Attorney General Eric Holder Speaks at the National Symposium on Pretrial Justice,” June 1, 2011, U.S. Department of Justice, http://www.justice.gov/iso/opa/ag/speeches/2011/ag-speech-110601.html.
This incarceration of pretrial defendants without any determination of their guilt impacts poor people the most. A Bureau of Justice Statistics survey of felony cases in the 75 most populous counties of the U.S. showed that average bail amounts have increased by over $30,000 between 1992 and 2006, Felony Defendants in Large Urban Counties reports,1992-2006, posing a serious concern for indigent populations involved in the criminal justice system. Average amounts for those detained until their hearing more than doubled from an average bail of $40,000 in 1992 to $90,000 in 2006. The proportion of felony cases assigned bail under $5,000 decreased by nearly 15 percentage points from 1998 to 2006; and the percent of cases with amounts from $5,000 to $24,999 has remained relatively stable.
Not only do high bail amounts pose a threat to constitutional rights to liberty pretrial, but they are believed to put low income populations at a disadvantage when facing plea bargains: people may feel pressured to plead guilty as remaining in jail has such significant negative consequences, such as losing a job or not being available to take care of a dependent. Michelle Alexander, “Go to Trial: Crash the Justice System.” Opinion article, The New York Times (2012) http://www.nytimes.com/2012/03/11/opinion/sunday/go-to-trial-crash-the-justice-system.html?_r=0 The role of finances in this equation violates the Equal Protection Clause. Jonathan Zweig, “Extraordinary Conditions of Release Under the Bail Reform Act,” 47 Harvard Journal on Legislation 556 (2010).
Cash bail is a source of unequal treatment of defendants. The cash-based charge-governed system institutionalizes economic discrimination against the poor. A person's ability to afford cash bail, a reflection of economic background, is unrelated to determining the likelihood that he or she will fail to attend court. Unfortunately, because of the economic basis of cash-based pretrial release, at least in most urban settings, racial bias is also a result. African Americans and other minorities, who disproportionately are numbered among the poorest of the poor, also disproportionately fill the jails as pretrial detainees.
A recent study looked at how race affects extralegal factors, such as education and financial support, which then affect legal factors, such as prior record and severity of charge. Together these factors influence pretrial decisions and outcomes. The study revealed correlations between race and all pretrial outcomes analyzed, concluding that “each correlation indicated harsher treatment for African Americans.” John Wooldredge, “Distinguishing Race Effects on Pre-Trial Release and Sentencing Decisions,” 29 Justice Quarterly,41-75, 54(2012). The results showed that:
• African Americans were less likely to be released on their own recognizance than white defendants. Id.
• African Americans ages 18 through 29 received significantly higher bail amounts than all other types of defendants. Id
Although the study did not show “race” directly predicting pretrial decisions, the relationship or “interaction” between race and other factors, such as age, gender, and socioeconomic status, was what directly impacted pretrial decisions.
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