Guilty Until Proven Innocent, Unless You Can Afford Bail
Part 1 of a Series on Jails and Bail
Happy New Year! I hope this newsletter edition finds you and yours healthy and well, or, at the very least, hanging in there. In the upcoming editions, I delve into jails1—how people get there, what they are, who is in them, and conditions of confinement. This is a huge topic so today I begin with how and why a person is held in jail.
When learning civics and the law, many of us heard the phrase(s): innocent until proven guilty and/or presumption of innocence. While neither of these phrases are found in the Constitution, the U.S. Supreme Court (SCOTUS) has determined that they are fundamental to receiving the fair trial that is guaranteed under the Constitution.2
However, the presumption of innocence does not mean that those charged with crimes walk free until they have their day (or half hour) in court.3 Indeed, nearly a half a million people at any given time are held in 3,214 jails around the United States and Indian Country ahead of their trial or case resolution.4 People go to jail 10.6 million times per year (that number is the number of intakes, not the number of unique individuals).
As with everything in the criminal legal system, it is important to emphasize that due to diminished (or never fully realized) rights under the Constitution, racial profiling, and other racist and discriminatory practices in law enforcement, people of color, particularly men of color, are disproportionately represented in the above numbers and in the number of arrests each year.
Without wading thick into the weeds, and speaking in broad generalities, when a person is arrested by the police for alleged conduct that could qualify as a misdemeanor or felony (see above figure), they are typically booked into jail until their arraignment or first appearance in front of a judge or magistrate. Sometimes their time in jail is just a couple of hours, and other times a day or so, depending on when the arrest occurred and the hearings are held. For example, a person arrested at 11AM on Tuesday may not see a judge until 10AM Wednesday because that is allotted time for first appearances.
At the arraignment, a person is given notice as to the charges against them and may enter a plea (guilty, not guilty, or no contest). Additionally, the judge sets the bail or releases the person on their own recognizance, and determines conditions of release. Lastly, arraignment is when the court ascertains whether the person requires a court appointed lawyer due to “indigence,” requiring that the person reveal their personal financial information on the public record.
Bail is the money amount a judge demands a person pay in order to remain out of jail until their case is resolved (via plea or trial).5
Personal recognizance means that the person does not have to pay any money to be released from jail, but is released on their attestation that they will appear for future court dates.6
Conditions of release are requirements people must follow in order to remain in the community, such as attending substance abuse counseling, refraining from using drugs or alcohol, or not contacting the alleged victim. (In Alaska, for example, if the person violates those conditions, they may be charged with a separate misdemeanor called Violating Conditions of Release).
*Financial Release means the person posted bail. Non-Financial Release means they were released on their own recognizance.7*
Many people are arraigned and have bail/release conditions set without the benefit of legal representation. The National Legal Aid and Defender Association (NLADA) reported that
[a] 2017 national survey of state procedural rules found that in thirty-two states, although counsel may be appointed at first appearance proceedings, counsel is not physically present for that hearing, which typically includes the initial pretrial release determination.8
This means that even when a person may qualify for court-appointed counsel, the lawyer is not present in the courtroom during the hearing in order to advocate for their new client. Why does this matter?
NLADA’s report gives an example:
In Baltimore, Maryland, an experiment where half of a sample group of persons accused of crimes were provided counsel at bail hearings found that those who were represented were 2.5 times more likely to be released on their own recognizance without paying bail, 4 times more likely to have their bail amount reduced, and 2 times more likely to be released on the day of arrest.9
These results are astonishing! People who receive representation in their first appearances have significantly improved outcomes from those who are not, yet thousands of people every year do not have access to an attorney during their first appearances.
Next Edition . . . Bail
How it works, who is impacted, and why it matters.
Even when a person is well represented at their first appearance, thousands of people are detained in local jails around the country because they cannot afford to pay the bail.10
Thank you for reading!
“[J]ails are, with few exceptions, municipal or county-level confinement facilities that are administered by local law enforcement agencies or departments of correction.” “What is jail?,” Vera Institute for Justice, available at: https://www.vera.org/the-human-toll-of-jail/what-is-jail.
For example, Taylor v. Kentucky, 436 U.S. 478 (1978), available at: https://supreme.justia.com/cases/federal/us/436/478/
The previous edition discussed plea bargains: “Many of us were raised with the idea that we seek justice by ‘having our day in court.’ In reality, however, the majority of criminal defendants only get their half hour in court as they plead guilty before a judge based on an agreed upon plea bargain. What’s more, many of the people who accept the plea deal are innocent of the charges against them.”
“Pretrial Detention,” Prison Policy Institute, available at: https://www.prisonpolicy.org/research/pretrial_detention/; “Mass Incarceration: The Whole Pie 2020,” Prison Policy Institute, available at: https://www.prisonpolicy.org/reports/pie2020.html
For a deeper explanation of bail, take a look at: “Bail and Bonds,” Justia, available at: https://www.justia.com/criminal/bail-bonds/ and Bernadette Rabui and Daniel Kopf, “Detaining the Poor: How money bail perpetuates an endless cycle of poverty and jail time,” Prison Policy Initiative, available at: https://www.prisonpolicy.org/reports/incomejails.html
Chart from Bernadette Rabui and Daniel Kopf, “Detaining the Poor: How money bail perpetuates an endless cycle of poverty and jail time,” Prison Policy Initiative, available at: https://www.prisonpolicy.org/reports/incomejails.html.
“Access to Counsel at First Appearance A Key Component of Pretrial Justice,” NLADA (Sept. 2020), at *4, available at: https://www.nlada.org/sites/default/files/NLADA%20CAFA.pdf
Ibid. at *3.
Recall the story of Kalief Browder, detained for three years at Rikers Island for a crime he did not commit because he could not pay the $3,000 bail. Alysio Santo, “No Bail, Less Hope: The Death of Kalief Browder,” The Marshall Project, available at: https://www.themarshallproject.org/2015/06/09/no-bail-less-hope-the-death-of-kalief-browder