Council’s Misdemeanor Bail Reform Proposals

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:

  1. Ability-to-Pay Determination: An inquiry into a person’s financial ability to post bail should be made within 24 hours of their arrest. The standard of “financial ability” should be the ability to promptly meet the financial requirement of the initial bond, not controlled by a later indigence. One of the suggestions to expedite this process is to combine court proceedings for the same arrestee, including first appearance, indigence determination, and a review of financial capacity.
  2. Arrest by Citation: This calls for an increase in the use of citations by police officers and courts in misdemeanor offenses, including shoplifting and marijuana possession of less than one ounce. Georgia has inconsistent citation arrest laws between magistrate, probate and municipal courts, even within the same jurisdiction, so it would be prompt to give all of these courts the same citation authority. The recommendation also calls for the creation of a Uniform Misdemeanor Complaint and Summons Forms, similar to a Uniform Traffic Citation, for relevant misdemeanors. This form would include the conditions associated with the summons to court, including not returning to the scene of the offense or not contacting any victims named.
  3. Alternatives to Monetary Bond: Permitting release on initial non-monetary bail for those offenses without jail time as a sentence. Such non-monetary bond would include unsecured bonds or increasing the collateral power of posting a driver’s license in lieu of bail.
  4. Individualizing Bail Determinations: This recommendation suggests a mandate to release those arrested for a misdemeanor pretrial on the least restrictive conditions possible, and that pretrial detention is only needed if the defendant is unlikely to appear or public safety is threatened. “Least restrictive conditions” is a phrase meant to deter the use of excessive bail in these cases. Other pretrial release conditions can be pretrial supervision or electronic monitoring to ensure court appearance. A caveat to this recommendation is eliminating a bail schedule for all family violence offenses to increase the safety of the alleged victim(s), where the judge can impose specific pretrial release conditions on a case-by-case basis.
  5. Effective Pretrial Release: Judges’ pretrial decisions depend on history and data on the defendant’s criminal status and court appearance history, and those decisions can be affected my missing or outdated data. A uniform and up-to-date “Failure to Appear” (FTA) procedure for notations and criminal history is also needed for future judge use. The promotion of electronic reminders such as text messages in plain, non-legal language of court appearance dates and consequences can lead to a decrease in FTAs if used widely by local jurisdictions.
  6. Best Practices and Other Recommendations:
  • Updating the Uniform Superior Court Rules on pretrial release would allow local courts to develop and use new programs.
  • Systematic data collection for the Judicial Council of Georgia should be improved. The types of data needed would be FTA and recidivism rates for misdemeanor defendants and those who are in jail pretrial because they cannot financially post bail. There is a wide variety of bail amounts set through Georgia, so establishing a statewide repository of bond schedules and an associated required filing of bond schedules could ensure future transparency.
  • A general promotion of judicial education on newly adopted reforms and current research on pretrial incarceration effects is necessary to shift the judicial culture towards these practices.

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.