Become a Patron! 


 

Cynthia E. Jones

excerpted from: Cynthia E. Jones, "Give Us Free": Addressing Racial Disparities in Bail Determinations”, 16 New York University Journal of Legislation and Public Policy 919 - 961 (2013) ( 181 Footnotes) (Full Article)


ABSTRACT


In the movie Amistad, an enslaved African led a group of fellow slaves in a revolt against their Spanish captors. The actions of the slaves eventually landed them on the eastern shores of the United States in a federal district court. During the protracted litigation over their fate, the Africans were held in jail and brought to court each day, bound in hand and leg irons, and chained together as a group. After months in detention, the leader of the group, with his limited command of Cynthia E Jonesthe English language, suddenly stood in the crowded courtroom and demanded: "GIVE US FREE! GIVE US FREE!" More than 150 years since the end of slavery in America, the iconic image depicted in Amistad of a group of black men being led to court in chains can still be seen every day in the United States. In many metropolitan courthouses across the country, large groups of predominately African American arrestees are shackled and chained together and herded into *921 crowded arraignment courtrooms for "freedom hearings," where they will learn whether they will be released from their shackles and given bail, or forced to remain in chains and sent to a detention facility until the criminal charges are resolved.

In our criminal justice system, the legitimate focus of the bail determination is whether the defendant, if released, will commit a criminal act that poses a danger to the community, or whether the defendant will flee the jurisdiction and fail to return to court for trial. As discussed more fully below, there are constitutional restrictions and state laws that prohibit the use of pretrial detention as punishment prior to an adjudication of guilt. There are also state laws that recognize the right of pretrial defendants in non-capital cases to be granted pretrial release if there is no basis for finding the defendant poses a flight or safety risk. In practice, however, whether a defendant is granted pretrial release or subjected to pretrial detention is, at best, arbitrary. Bail commissioners, magistrate judges and other court officers wield considerable power and exercise virtually unbridled discretion in making bail determinations, which are too frequently corrupted by the random amount of the money bond imposed, the defendant's lack of financial resources, the implicit bias of the bail official, and the race of the defendant. These factors combine to create an extreme dysfunction in the bail determination process, which produce severe over-crowding of jails with pretrial defendants, and unwarranted racial disparities in bail outcomes between white and African American pretrial defendants.

This article discusses the widespread and well-documented racial disparities in the bail determination process and presents policy reforms to reduce racial and ethnic disparities in pretrial detention. Part I discusses the limited constitutional restrictions on bail; the federal and state laws governing bail determinations; and the divergent and dysfunctional bail determination practices in state courts across the country. Part II discusses the extensive body of research that confirms that African American defendants are routinely subjected to harsher treatment in the bail process than white defendants charged with similar crimes, with similar backgrounds, and similar criminal histories. Part III highlights the work of the criminal justice officials in Saint Louis *922 County (Duluth), Minnesota to address racial disparities in bail determinations in their local courts. Their approach to racial justice policy reform provides a useful roadmap for other jurisdictions. Finally, Part IV builds upon the work of the criminal justice officials in Duluth and proposes additional policy reforms that can be instituted to eliminate the arbitrariness and the lack of accountability for bail decisions that produce racial disparities.

* * *

The dysfunction in the bail determination process not only results in over-incarceration of pretrial defendants and jail over-crowding more generally, but also produces unwarranted racial disparities in bail outcomes among white and African American defendants. Education and policy reforms can be implemented to re-focus bail determinations on flight risk and community safety. However, more accountability and oversight is needed to ensure that bail officials are using proper criteria in making the flight/safety determination. The widespread racial disparities in bail determinations are caused, in part, by the virtually unbridled and unchecked discretion that bail officials have in setting bail. Instead of engaging in a deliberative, individualized assessment of a defendant's flight and safety risk, bail officials compensate for the absence of critical background information with arbitrary money bonds that result in pretrial detention for the poor and costly jail overcrowding for local governments. These flawed bail determination practices can be reformed by criminal justice stakeholders by adopting policy reforms that will fundamentally alter the flawed bail determination practices currently employed, reduce the over-incarceration of low and moderate risk, indigent pretrial defendants, and eliminate unwarranted racial disparities in pretrial detention.


 Associate Professor of Law at the American University, Washington College of Law, former Deputy Director of the District of Columbia Pretrial Services Agency and former Executive Director of the Public Defender Service for the District of Columbia (PDS), currently serving on the governing boards of The Sentencing Project and the Pretrial Justice Institute.