• Mr. Steven J. Muehler

Steve Muehler's Plan for Money Bail Reform

Updated: Apr 23

Most of the 12 million jail bookings in the United States each year are for low-level, nonviolent charges. Yet far too many of these defendants remain in jail while awaiting their day in court because they cannot afford “MONEY BAIL”.

More than 60 percent of people locked up in America’s jails have not yet been to trial, and as many as nine in 10 of those people are stuck in jail because they can’t afford to post bond. They are presumed innocent until proven guilty, according to a bedrock principle of the justice system. Low-risk defendants charged with offenses like shoplifting or traffic violations often wait in jail for days, months, or even years for a trial. But that’s the reality of the current justice system, one that spends nearly $14 BILLION a year on pretrial confinement.

The system often seems indifferent to the damage pretrial detention can cause. This was illustrated in the Department of Justice’s Ferguson Report, which found that some court systems not only fail to give credit for time served pretrial, but also don’t even track the total time a person has spent in jail as a part of a case. When asked why this was not tracked, a member of the court staff in Ferguson told the Department of Justice, “It’s only three days anyway.”

But three days count. Even short-term incarceration can have dire consequences. People can lose their jobs, housing, even custody of their kids if they’re in jail. Studies also show pretrial detention makes otherwise low-risk defendants more likely to commit new crimes and less likely to appear in court.

Spending the full pretrial detention period in jail also makes a person more likely to be sentenced to jail or prison and for a longer time—effectively adding to the problem of mass incarceration.

These harms are not shouldered evenly. Blacks, Latinos, and Native Americans are twice as likely to be stuck in jail because they cannot afford money bail. This is in no small part because they face higher bail amounts on average than white defendants with similar charges. All this harm can happen even if a person is eventually found innocent or the charges are dismissed. The other side to this dysfunction is that about half of the most dangerous defendants exploit the money-bail system, often with assistance from for-profit bail bondsmen, to come up with the cash that lets them leave jail unencumbered by monitoring or supervision by the courts.

Many jurisdictions already know how to replace outdated pretrial justice policies like Money Bail with risk-based systems that are safer, fairer, and more effective. Under my watch, we would replace the current Money Bail Program with one this resembles that of the District of Columbia, which instituted reforms in the 1990s that effectively replaced Money Bail with a pretrial risk assessment program that evaluates which defendants are too risky to be released. This highly effective program doesn’t demand Money Bail; instead defendants are assessed for their likelihood to appear for their trial and potential impact on public safety. Most defendants are released on their own recognizance or under minimal supervision, and only about 15 percent of defendants are held in jail. D.C.’s model has an 89 percent court appearance rate, which is comparable to what is seen elsewhere under Money Bail. The model is being adopted in a growing list of other jurisdictions, including, mostly recently, the state of New Jersey.

The damage Money Bail causes is serious enough—and the solutions so within reach—that pretrial reform should be a priority. States can improve the laws that govern pretrial detention, and counties can implement risk assessment and right-sized supervision for those who need it. More and more legislators, activists, and state leaders are following the example of Colorado, Kentucky, and dozens of other places that have already begun implementing smarter pretrial justice practices. There are different strategies for realizing these changes. The non-profit civil-rights organization Equal Justice Under Law has been successfully using the equal-protection clause to challenge the constitutionality of Money Bail. Many jurisdictions, like Connecticut, are championing bail reform through legislative action. In February of 2016, Representative Ted Lieu of California introduced the No More Money Bail Act of 2016, which would give states three years to replace money bail with risk-assessment alternatives or face the loss of federal funds for common justice programs and initiatives.

Four months ago, California State Senator Bob Hertzberg (D-Van Nuys) and Assemblyman Rob Bonta (D-Oakland) introduced the California Money Bail Reform Act of 2017 — identical pieces of legislation (Senate Bill 10 and Assembly Bill 42) that would phase out excessive money bail systems statewide for most misdemeanors and some nonviolent felonies. And this past March, Los Angeles-area Congressman Ted Lieu introduced the No Money Bail Act of 2017 in Washington.

Ted Lieu’s previous No Money Bail Act died in the House last year.

Median bail in California is $50,000. If an arrestee uses a bail bond agent, he or she has to pay the agent a nonrefundable 10 percent for release – in the case of the median bond, that’s $5,000. Even bail for many misdemeanors can run over $1,000 – still beyond the reach of many indigent defendants. This results in poor defendants spending weeks or months in jail awaiting trial, causing the loss of jobs, homes, cars and in many cases, the family’s primary breadwinner.

According to a report issued by the Public Policy Institute of California (PPIC), more than 62 percent of county jail inmates are awaiting trials or sentencing, translating into about 46,000 Californians on a daily basis. The majority remain in jail because they can’t afford bail.

The proposed legislation, a legislation I would support, will require counties to set up a “pretrial services agency that would be responsible for gathering information about newly arrested persons, conducting pretrial risk assessments, preparing individually tailored recommendations to the court and providing pretrial services and supervision to persons on pretrial release.” It also:

  • Provides for the use of “unsecured appearance bonds,” by which defendants agree to pay a specific amount if he or she fails to appear in court.

  • Gives reminders to defendants about upcoming court dates, and helps with transportation, if needed. Money Bail options are included in these bills, provided the bail is the “least restrictive necessary to assure the appearance” in court, and the court must conduct an inquiry to determine the defendant’s ability to pay the bail.

  • Enables prosecutors to file a motion for pretrial detention and precludes people from being eligible for pretrial release if they are charged with a capital crime, a felony involving violence or sexual assault, or if the person’s release would likely result in harm to others, or if the person had threatened harm to others.

Hertzberg’s bill passed through the Senate Public Safety Committee by a 5 to 1 vote in early April of 2017 and is headed to the Senate Appropriations Committee. Bonta’s version of the bill recently underwent a hearing in the State Assembly’s Committee on Public Safety.

The cost to house California inmates averages about $114 per day, according to the PPIC. In Los Angeles the average cost for Fiscal Year 2015-2016 was slightly more than $178 per day, according to the Los Angeles County Sheriff’s Department, which reports that about $797 million – or 24 percent of the department’s total budget – goes to operate the county’s jail system.

There’s been no study done in L.A. County regarding how many inmates remain in its jail system because they are too poor to post a money bail.

Washington, DC’s local courts have the most experience using a pretrial release system that is based on inmate assessments rather than money bail (as discussed earlier). Cliff Keenan is the director of DC’s Pretrial Services Agency, a federally funded, independent entity within the Court Services and Offender Supervision Agency charged with formulating release recommendations and providing supervision and services to defendants awaiting trial. His office handles some 22,000 cases a year, including 4,000 felonies and 17,000 misdemeanors.

Keenan said that the District stopped using any money as a condition of pretrial release in 1992, when the new Bail Reform Act mandated that defendants would receive a hearing with 24 hours of their detention to determine their release status.

While there have been failures, Keenan pointed to his office’s latest published figures showing that 91 percent of released defendants remained arrest-free while their cases were adjudicated; 98 percent of released defendants were not rearrested for a crime of violence while in the community pending trial; 90 percent of released defendants made all scheduled court appearances and 88 percent of released defendants remained on release at the conclusion of their pretrial status.

This is the program we would under my watch work to institute nationally.

Steve Muehler is the Founder & Managing Member of the Private Placement Markets:

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© 2017 by Mr. Steven J. Muehler