Our broken bail system

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What happens to people charged with crimes before they even go to trial can be as much of a punishment as anything they receive after being convicted. Money bail, which is imposed in state court in Florida and many other jurisdictions, is a hot topic in America and an area where people on both sides of the criminal justice system are advocating for change.

Pretrial release in Florida generally comes in the form of money bail, the cost of which can be prohibitively high for poor defendants. In fact, often monetary bond is so high, on charges as low as misdemeanor possession or driving without a valid license, that they are tantamount to no bond. Many defendants remain in jail awaiting trial, meaning that many innocent people stay in jail waiting to be acquitted, essentially serving incarceration for crimes they did not commit. Thirty-four percent of defendants in the U.S. are kept in jail before their trials because they cannot afford bond, according to an article written by Theodore Kupfer in the National Review on July 12, 2018.

States like New Jersey, Connecticut and Illinois have enacted sweeping bail reform that has withstood challenges in federal court. The 8th Amendment of the U.S. constitution prohibits the government from imposing “excessive bail.” For many indigent defendants, any monetary bond is excessive. Class action lawsuits have largely been successful, and bail reform has gained in popularity in both red and blue states. Jackson, Mississippi agreed to stop using money bail in misdemeanor cases as part of a legal settlement, according to a story published in the Washington Post on July 4, 2016.

But this has been a long-standing, ongoing discussion. In 1964, then-Attorney General Robert Kennedy criticized the monetary bail system as placing a greater weight on a defendant’s wealth than on his guilt or innocence or the weight of the evidence against him. But bail is a big business netting some $2 billion in profits annually for bail bond companies. Everyone familiar with Dog the Bounty Hunter knows that these are profits the bondsmen aggressively protect. It is not surprising that the bail bond companies would be hesitant to cede these profits and support non-monetary release. However, there is a new frontier of profit for these companies, and many are transitioning to alcohol testing and GPS monitoring. While these are often costly, they are being utilized as alternatives to monetary bond.

Ultimately, however, it is a case of a powerful special interest fighting to maintain the power they have amassed. It will take brave legislative action to finally break this system from which many have profited, but which has cost the poorest in our society the most, rendering our jails debtors’ prisons. Brave legislators are in short supply lately. One can only hope this will be a rare issue where some profiles in courage will be produced.     

 

Janet Johnson is a criminal defense attorney in Jacksonville who practices in state and federal courts. White collar crimes, including fraud, embezzlement and tax evasion, are among her areas of expertise. She is rated AV Preeminent on attorney rating website Martindale-Hubbell and has been named to the American Institute of Criminal Law Attorneys’ Top 10 Best Attorneys list. Johnson is also a legal analyst for CNN and HLN.

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