Academic journal article Albany Law Review

Accused and Unconvicted: Fleeing from Wealth-Based Pretrial Detention

Academic journal article Albany Law Review

Accused and Unconvicted: Fleeing from Wealth-Based Pretrial Detention

Article excerpt

I, Miranda Lynn ODonnell, am a 22-year-old woman. I was arrested  yesterday, May 18, 2016...for a misdemeanor offense [driving with an  invalid license]. I was told by the Sheriff's deputies that my money  bail is $2500. I know that because I cannot afford to pay that amount,  I have to stay in jail. I saw a TV judge this morning....He said my  bail will stay at $2500....I was never asked if I could afford my  bail. A sheriff's deputy told me not to say anything during my hearing.  It took about 60 seconds. I have a 4-year-old daughter. I receive  [public] support her. I can't afford rent so I stay  with a friend. I just started working at a restaurant a few weeks ago.  I live paycheck to paycheck. I'm worried about whether my job will  still be there when I get out. (1) 


Over thirty years ago the United States Supreme Court recognized that "liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." (2) Today, the "norm" is pretrial detention for nearly 450,000 people across the country, many of whom are destitute but eligible for immediate release if they pay the money bail imposed by the court. (3) Throughout the history of America, (4) money bail has been, and continues to be, the most significant barrier to pretrial freedom for those who are arrested but presumed innocent of criminal conduct. (5) For many arrestees, money bail works exactly as intended: it provides an expedient mechanism for pretrial release upon posting a sum of money to seal the defendant's promise to return to court for future hearings. (6) However, conditioning pretrial release on the payment of a sum of money results in de facto pretrial detention for indigent defendants because they will remain in jail until their case is resolved. (7) In some jurisdictions, the amount of money bail courts demanded for minor offenses can be as high as $5,000, (8) effectively placing pretrial freedom far beyond the meager resources of the indigent. At the other end of the spectrum, many people languish in jail for weeks or months even when bail is set as low as a few hundred dollars or less. (9)

It is significant that money bail is imposed routinely in cases involving minor traffic infractions or petty regulatory offenses for which the maximum penalty upon conviction is a fine of a few hundred dollars, but no period of incarceration. (10) Likewise, pretrial defendants can be held in pretrial detention on nonviolent misdemeanor charges which are punishable by up to a year in jail, but will likely result in either dismissal of the charges or, if convicted, a probationary sentence. (11) Moreover, the impact of weeks and months in pretrial detention is profound. Pretrial detainees are at risk of losing any stability they had prior to detention. (12) Even two or three days of pretrial detention causes indigent defendants who are already experiencing socioeconomic disadvantages (i.e., homelessness, mental health disorders, substance abuse) to suffer greater set-backs, including the loss of employment, public benefits, child custody. (13) Also, detainees are exposed to dangers of physical and sexual violence as well as disease and poor medical treatment in jail. (14)

The legitimacy of cash bail that results in de facto pretrial detention in low level criminal cases is questionable when there are readily available nonfinancial forms of pretrial release. Instead of secure money bail which requires the defendant to post a sum of money as a precondition of release, (15) courts could impose an unsecured money bail condition and require payment only if the defendant fails to return to court. (16) There are also a host of nonfinancial conditions of release that could be used to facilitate the defendant's release and reappearance. (17)

The overuse and abuse of money bail by state courts in cases involving nonviolent indigent defendants, particularly those charged with petty offenses, is at the center of the national bail reform movement and the current wave of federal civil rights litigation on behalf of indigent pretrial detainees. …

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