A summary of the misdemeanor bail reform findings and recommendations from the February 2018 Report of the Georgia Council on Criminal Justice Reform (pages 25-39).
By Sophia Strickland
The Georgia Council on Criminal Justice Reform’s 2018 report delivered to Gov. Nathan Deal in February focused on pretrial justice, especially within misdemeanor bail practices. According to the report:
An increasing amount of research is showing the negative consequences of a money-based bail system. Those people who cannot afford bail and therefore incarcerated pretrial could lose their jobs or go into further financial debt or lose their jobs, and then cannot support their families or pay the court-imposed fines or obligations. In fact, studies show that people who are released on bail, employed, connected with families, and not using drugs or alcohol are more likely to make their court appearance than those who were incarcerated for a few days.
Since 60 percent of the nation’s inmates in jail are within the pretrial population, and about three-fourths of those pretrial defendants are accused of nonviolent offenses, reform on pretrial systems could provide fiscal benefits to local governments. In a national survey, 40 percent of jail officials stated that reducing costs was one of their most serious issues and reducing the pretrial incarcerated population could be a significant way to do reduce costs. For example, Fulton County’s pretrial services division, which conducts intake screenings on arrested persons and can funnel those who qualify to accountability courts, has saved approximately $7 million per year because fewer low-risk defendants are housed in jails.
Other studies demonstrate that pretrial detention leads to harsher criminal justice and sentencing outcomes as well as exacerbating racial disparities in the criminal justice system. A study done through the University of Georgia Law School in Harris County, Texas, showed a direct correlation between the amount of days detained pretrial and a higher rate of pleading guilty, being more likely to receive a jail sentence, and having sentences that were on average twice as long than similar defendants who were not held pretrial.
Black and Latino defendants are more likely to be detained pretrial and less likely to be able to post bail money than white defendants charged with similar crimes. The higher pretrial rates are most likely a function of the “well-established linkages between wealth and race,” and therefore Black and Latino defendants are more likely to have guilty convictions, plead guilty or have longer sentences because pretrial detention affects later outcomes.
One Kentucky study evaluating 153,000 misdemeanor defendants showed that recidivism rates, were significantly higher if the defendant was incarcerated even for two to three days after their arrest. The longer than the defendant was incarcerated pretrial, the higher those recidivism rates were.
While many pretrial incarcerated people cannot post bail financially, they may not pose a public safety risk; conversely, many dangerous people waiting for trial may be able to post bail because they are more financially prosperous.
Therefore, the Conference of Chief Justices published a resolution urging the use of evidence-based assessment of risk in pretrial release conditions, and many national associations published concurring statements. Several states have already rewritten their bail laws while even more have appointed expert panels to implement and judge the use of evidence-based practices in this setting.
Courts have also begun looking at the constitutionality of money-based bail practices, and some have determined that incarcerating a person pretrial because of their inability to post bail is a violation of the Fourteenth Amendment’s Equal Protection and Due Process clauses.
A similar set of cases has arisen in the U.S. District Court for the Northern District in Georgia when an injunction was imposed by the District judge on the City of Calhoun to release misdemeanor arrestees on their own recognizance or an unsecured bond, a form of non-monetary bail. The injunction was reversed after the Calhoun city officials appealed the decision to the U.S. Court of Appeals in March 2017. After city officials came up with an unsatisfactory plan, the District judge reinstated the injunction. This has led to a second appeal from city officials to the 11th Circuit Court of Appeals, which has yet to be decided.
The Georgia Council on Criminal Justice Reform convened a committee made up of members from different court systems in Georgia, including the superior, state, magistrate, probate and municipal courts. The Committee’s goals on reforming bail practices were to maximize public safety, pretrial justice and personal liberty. The Pre-Trial Justice Institute presented to the Committee on national bail reform trends and pretrial risk assessments, which Georgia could adopt or modify in the future to serve as a tool for judges in pretrial decisions. Many stakeholders and human rights groups presented to the Committee too, including the ACLU.
The Committee made the following Bail Reform Recommendations for 2018:
Read the Council’s report here.
Find the ensuing legislation here.
Sophia Strickland is a student at Johns Hopkins University and a Summer 2018 intern at the Georgia Public Policy Foundation.