Myth busting cash bail

Dear Readers, legal concepts may have a rational basis.  The precepts may make sense, but the results are unexpected.  

An example is cash bail.  When someone is arrested, a bond is required for release from jail, pegging the amount to the seriousness of the crime to prevent future crime and ensure a detainee returns from court.  If the arrestee cannot afford bond, protection of the community is assured.

Generally speaking, a person held in jail has to have their detention reviewed by a magistrate within a “reasonable period of time” following an arrest.  The issuance of an arrest warrant qualifies.  By law, a jail has 72 hours to carry a detainee held with a warrant before a magistrate; and, an arrest warrant has to be obtained within 48 hours of an arrest.  Hence, the absolute maximum amount of time you can be held (in Georgia) in jail without a bond hearing is five days.

Some crimes have a “standard” bond attached to them.  The jail looks at the charges and the bond-schedule dictates the detainee’s bond eligibility and amount.  A great example is non-family violence misdemeanors.  

If there is no standard bond (or misdemeanor), you go before the magistrate for a hearing.  Some offenses are “bondable” and the magistrate can issue a bond – or maybe this is a family violence arrest, so the magistrate can issue special conditions attached to bail.  Once again, the magistrate may have a schedule, if you are arrested for shoplifting, for instance, this may carry a $1,000.00 bond.

With some felonies, bond is only going to be considered by a Superior Court judge.  Juveniles charged as an adult would be an example.  

The time of Superior Court bond hearings is not governed by hard and fast limits.  In fact, the only statutory one is that an unindicted detainee can only be held for ninety (90) days without bond.  If you hit that 90-day mark, you have to be given a bond (this does not mean release, just having a bond set).  Other than this, it is just a hearing within a “reasonable time.”  In Houston County, this means next week’s Thursday bond calendar.

There are three considerations at a Superior Court bond hearing – ties to the community, threat to re-offend, and danger to the community (the last two almost converge).  In theory, a first offender charged with murder (even premeditated murder) passes all three parts of the test and should have a bond.  Hence, the seriousness of the crime allegedly committed is not directly a factor at a bond hearing.

Bond can get expensive and beyond the means of an arrestee and family.  Private bonding companies are paid a sliding scale percentage of the bond to post the entire bond.  They obligate themselves to ensure the person bonded returns for court (although, not the safety of the community).

This can end up-means-testing a person’s release from jail pending trial.  If bond (or the bond fee) is beyond the detainee’s financial capabilities, many, many innocent people plead guilty just to gain release.  Inability to make bond is the yoke of poverty.

Given the financial inequities of a bond system, many jurisdictions have eliminated or reformed the cash bond system.  Interestingly enough, federal courts rarely require cash bond for pre-trial release.

The State of Illinois is one such jurisdiction having enacted the Pretrial Fairness Act.  A year later, the results are interesting.  

The Loyola Center for Criminal Justice analyzed statewide data for trends and observations.  Of the nearly 9,000 detention-eligible detainees, 36% were detained and for 43% detention was never requested.  Defendants failed to show for court 15% of the time (it was 17% before the law went into effect).  In the first 9 months since the law went into effect, roughly $6.7 million were avoided in bond costs.  And, contrary to popular myth, violent and property crime is down since the law went into effect.

At least in Cook County, bond hearings went from 4 minutes to 16 on average, which the report attributed to judges detailing their decisions.  The jail population went down 14% in Cook County – the same for other urban areas and 25% in rural counties state-wide).  Electronic monitoring did not rise, although those released might be supervised in the community by other means.

What does this tell us?  Cash bond does not better protect the community.  It does not increase missed court appearances.  It saves money – both the arrestees and the community (shrinking jail populations).

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.