The movement to end cash bail is making strides, with prosecutors increasingly driving change after listening to community concerns. In Chicago, State’s Attorney Kim Foxx recently announced a policy whereby her office would recommend release for most misdemeanor defendants. In Philadelphia, the leading candidate for district attorney plans to end cash bail completely if elected. Christian Gossett, the head prosecutor in Winnebago County, Wis., waived all appearances by prosecutors on weekends and holidays, allowing people accused of low-level offenses to be immediately released.
Reform has proven harder to come by in North Carolina. According to the Pretrial Justice Institute, “legal and evidence-based pretrial justice practices are not in place in North Carolina” outside of Mecklenburg County. The Pretrial Justice Institute also stated that the bond guidelines in the rest of our counties are “antiquated” and that similar systems have been ruled unconstitutional in various federal courts. There is both the public desire and need for more improvement.
Luckily, we have some North Carolina district attorneys who have talked about the importance of treating people fairly and could take this opportunity to lead bail reform. For instance, Wake County D.A. Lorrin Freeman said in an interview in 2014 that “All residents of Wake County should be treated the same under the law.” And Durham County D.A. Roger Echols wrote in a candidate questionnaire that “There is no greater contributing factor than poverty” to both crime and incarceration. These leaders in our community now have the opportunity to help reject our antiquated bail system, which treats poor people unfairly. Here are three reasons they should take this chance.
First, the evidence suggests that cash bail doesn’t improve public safety, nor does it make it more likely that defendants will show up in court. A study by the Arnold Foundation showed that people who remain in jail more than 24 hours before their release are less likely to appear than similarly situated defendants who are held for briefer periods. Research also demonstrates that people detained pretrial for low- or mid-level crimes are more likely to commit new crimes upon their release than if they were allowed to remain free.
The use of cash bail also has a disparate impact on people of color and those without financial means. A report by the Justice Policy Institute notes that African-American defendants are detained in jail at nearly five times the rate as white defendants nationally. African-Americans aged 18 to 29 typically receive significantly higher bail amounts than other defendants. Many individuals have to decide between taking on a substantial financial burden or remaining in jail. It is communities and families that suffer, as time in jail can lead to a loss of employment, absences from school and family separation.
Finally, during plea negotiations, prosecutors often use the threat of more active jail time should a case proceed to trial, in order to coerce defendants to plead guilty, thereby increasing the risk of false confessions and wrongful convictions. It is not unusual for individuals to plead guilty in order to get out of jail sooner, even when they are innocent. Misdemeanor defendants who could not afford bail were 25 percent more likely to plead guilty than those who could come up with the necessary money to post bail in Harris County, Texas.
When Attorney Foxx from Illinois announced her bail reforms, she astutely stated that “for too long, prosecutors have abdicated our responsibility by not participating in this process. With this policy change, we recognize the role our office can play in decreasing the overreliance on pre-trial detention.” Luckily, Lorrin Freeman seems up to the challenge. When running for Wake County D.A. in 2014 she said that the number one quality that makes a successful D.A. is “a commitment to doing what is right even when it is not easy.” We are going to need that type of determination if we are going to create this change. Now is the time for leadership and Freeman and Echols’s own words give us hope that they are ready for this fight.
David Hall is the senior criminal justice attorney for the Southern Coalition for Social Justice based in Durham.