GateHouse: America’s bail system in crisis

Matthew T. Mangino

GateHouse Media

May 24, 2019

There is a crisis in America’s pretrial system. The crisis is costly, promotes excessive - and potentially abusive - use of the plea bargain and needlessly deprives men and women of their liberty. The bail system - when and how a decision is made about the freedom of an accused pending trial - is, at best, in crisis and, at worst, an unconstitutional deprivation of legal representation and liberty.

The 1963 landmark Supreme Court decision in Gideon v. Wainwright guaranteed the right to counsel for indigent defendants. Gideon referred to a lawyer as “a necessity, not a luxury.” The right to counsel should commence when a defendant first appears before a judicial officer.

In a significant majority of states, that’s not how it works.

The current bail system denies freedom to thousands of people who are presumed innocent but are financially challenged. Those who sit in jail are at risk of losing their jobs, their homes and their families.

Certainly, it’s unfair to incarcerate someone merely because they cannot afford bail. It is equally unfair to every man and woman in America to spend about $1 trillion, according to the Pretrial Justice Institute, on pretrial incarceration, which amounts to about 6 percent of the Gross Domestic Product.

According to White House Council of Economic Advisors, the use of bail has exploded in the past two decades, driving a 59 percent rise in the number of unconvicted jail inmates.

Correcting the bail crisis is not out of reach. This isn’t about being tough on crime. It’s about being fair. For some, even a nominal bond is out of reach. When an accused has no money, $1,500 might as well be $150,000.

For taxpayers the issue is just as compelling. If the cost of pretrial detention could be cut in half, taxpayers could save literally billions annually.

Bail serves two purposes: To guarantee that defendants appear for court; and to protect the public from those who are a potential threat. Proponents of cash bail say the money to post bail often comes from family members, and serves as a deterrent to fleeing.

Lawmakers would do well to remember that bail is not punitive. Although violent crime rates are at historic lows, lawmakers continue to label violent crime as a top priority. Tough on crime rhetoric continues to be the theme of the day, although some reform-minded prosecutors have been elected around the country.

There is something that can be done immediately to have an impact on pretrial detention.

Fulfill the promise of Gideon at the very earliest stages of a prosecution. Counsel must be appointed for the detention hearing or preliminary arraignment when bail is set.

According to The Constitution Project, attorneys are never present at the first bail hearing in eight states - Alabama, Kansas, Michigan, Mississippi, Oklahoma, South Carolina, Tennessee and Texas. Attorneys appear on behalf of the accused infrequently in 17 states - Alaska, Arkansas, Colorado, Georgia, Illinois, Indiana, Iowa, Missouri, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, Pennsylvania, South Dakota, West Virginia and Wyoming.

In 11 other states - Idaho, Kentucky, Louisiana, Minnesota, Montana, Ohio, Oregon, Rhode Island, Utah, Virginia and Washington - a poor person has about a 50 percent chance of obtaining an assigned attorney for a detention hearing.

For instance, Pennsylvania is the only state in the nation in which funds for indigent defense are paid exclusively on a local level. The state provides no funding for court-appointed counsel. No wonder Pennsylvania is one of those states that infrequently provides counsel at initial bail hearings.

Philadelphia can afford to pay for counsel at initial bail hearings, but economically disadvantaged Lawrence County in western Pennsylvania, population 87,000 and falling, can’t afford to do the same.

There are simple solutions that may cost money up-front but will literally save billions in the long run.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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