Bail System Unfair, Former White House Counsel Says

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By Jessica DaSilva

Municipalities and states need to move away from using a pretrial bail money system and court fines and fees as a source of government funding, according to former White House General Counsel W. Neil Eggleston.

Collecting bail in addition to fines and fees keeps poor defendants tethered to the criminal justice system well beyond their sentences, Eggleston said March 9. Eggleston made the keynote address at the American Bar Association’s Annual White Collar Crime conference in Miami Beach, Fla.

Having debt to the court affects not just defendants’ lives, but their families’ lives as well, he explained. It also creates an incentive for defendants to plead guilty so they can get out of jail sooner, he said.

Eggleston applauded former President Barack Obama’s dedication to initiatives seeking to reduce the financial effects on defendants in the criminal justice system.

“What he really wanted to do was stop the criminality of poverty,” Eggleston said.

Bail, fines and fees create a two-tiered system where wealthier defendants—who can afford to pay the court—can move on from their crimes, but poorer defendants can’t, said two professors who study the impact of court-assessed money on defendants and the criminal justice system.

Although the current system should be overhauled, bail could be effective for a smaller subset of people, a professor who studies economics and criminal law said.

Anti-Bail Trend

Eggleston’s comments reflect a trend away from money bail systems, said Shima Baradaran Baughman, a University of Utah law professor whose research focuses on bail. Many states are switching to a pretrial release-based program that resembles supervised release for former inmates, Baughman told Bloomberg BNA.

Judges and lawyers in the criminal justice system need to understand the effect their decisions regarding bail have on defendants, Baughman said. For example, defendants who serve time in jail before trial are more likely to receive a custodial sentence and commit more crimes in the future, she said.

“It’s a small decision that judges make, but it has a huge impact on the defendant’s life,” Baughman said. Overhauling the bail system “is the key to reducing mass incarceration in America.”

‘The Sweet Spot.’

Bail can be effective for a smaller subset of people, said University of Pennsylvania Law School Prof. David Abrams, whose criminal law research focuses on how individuals respond to incentives.

Whether bail is effective depends on how people value their freedom, Abrams told Bloomberg BNA.

Abrams tried to place a number on that cost in a 2011 study that showed the average price of freedom was pretty low—many people would pay around $1,000 to avoid 90 days in jail, he said. But that’s because most poor people cannot afford bail in the first place, which means they’ll almost always stay in jail while awaiting trial, Abrams said.

“That’s exactly where it becomes questionable,” he said, adding that it’s difficult to impact a person’s behavior if they’re financially unable to place a high economic “value” on pretrial release.

For the people for whom bail could create an incentive, having to borrow money from bail bondsmen, friends or family creates an accountability system where multiple people will ensure that defendants get to their hearings, he said.

But bail systems are overused as most currently stand, Abrams added. He “definitely agrees” that in its current form, the use of bail should be significantly scaled back.

“It has to be the sweet spot of defendants who aren’t so poor that they can’t afford it,” Abrams said. “And they can’t be so rich that it doesn’t matter if they lose it.”

Then and Now

Under former President Obama, the Justice Department analyzed data to determine how bail and legal fines or fees affected defendants, said Alexes Harris, a sociology professor at the University of Washington in Seattle. The study resulted in ongoing monitoring of jurisdictions that seemed to impose monetary sanctions in biased ways, Harris told Bloomberg BNA.

That commitment likely won’t continue under President Donald Trump, Harris speculated. The Justice Department also probably won’t monitor potential due process violations that could result from monetary sanctions, she said.

That ends up leaving control to states, counties and municipalities because they set fines and fees and give judges discretion in setting bail, she said.

Under the Obama administration, the Justice Department made an active effort to investigate and report issues regarding implicit bias or unfair levying of fines and fees in local jurisdictions, Harris said. For example, it found that police in Ferguson, Mo., were issuing citations to minority residents more often than white residents.

Requests for comment to the Justice Department and the White House were not returned.

To contact the reporter on this story: Jessica DaSilva in Washington at jdasilva@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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