Cash bail: Lawsuits target practice that leaves poor people jailed while others walk

This story was originally published in the Florida Phoenix.

George Whitfield, arrested for possessing drugs and paraphernalia, has been held in the Sarasota jail awaiting trial since Aug. 4. Meanwhile, he’s lost his job.

Why? He couldn’t afford the bail amount of $2,000.

Linda Sue Reed of Sarasota was arrested Sept. 8 on a charge of selling cocaine within 1,000 feet of a public park and has been in jail since.

Reed, 57, told the court she relies on disability benefits, court records show, but her initial bail was set at $20,000. A judge reduced the amount to $7,500, but Reed’s attorney stressed that she cannot pay that or any other amount. So, she is awaiting trial in jail.

These are just two examples of pretrial detention based on one’s ability to post cash bail, according to the ACLU of Florida, which is trying to change unaffordable cash bail practices that can break people’s lives.

Civil rights attorneys here and elsewhere across the country argue it is unjust and unconstitutional that Whitfield, Reed, and countless others remain behind bars due to poverty while a wealthier person could pay such bail and go free until they stand trial.

The ACLU provided numerous court documents to the Florida Phoenix related to 11 people detained because they couldn’t afford bail.

It may as well be $5 trillion

The ACLU and other lawyers are petitioning courts around the country to end the practice of setting “unaffordable” cash bail as a condition of pretrial release.

They say it fails to reflect poor people’s financial circumstances, costs employed people their jobs, exposes them to hazards such as jail overcrowding and COVID-19, and pressures them to accept plea deals as the only alternative to spending months in jail awaiting trial.

When a defendant accepts a plea deal, he or she spares the state the necessity and expense of conducting a trial.

The ACLU argues that 11 people in Manatee and Sarasota counties are being held in jail on bail that is unaffordable at any level, considering their financial circumstances.

“Through this lens, for example, a $5,000 monetary bail is no different than a $5 million, $5 billion, or a $5 trillion bail so long as they are all unaffordable and thus accomplish the same detention goal,” attorneys wrote in a petition seeking certification of a class action on behalf of the accused.

A state court dismissed the petition but invited the organization to file individually on behalf of the 11 identified plaintiffs, which it did, so the case remains active.

Some states have curbed the use of cash bail, to some degree, but others are holding to the traditional approach.

The federal court for the Northern District of Florida, based in Tallahassee, has modified its use of cash bail, but that’s not statewide.

The Northern District does not allow cash bail to be set in excess of a defendant’s ability to pay. Instead, it decides whether pretrial detention is proper at all for a given defendant; if it is not, he or she is released on nonmonetary conditions such as supervised release, electronic monitoring, or conditions tailored to the charge, such as drug testing or installing a breathalyzer device on the vehicle of a person charged with DUI.

The ACLU in Pennsylvania reports that Alaska; Arizona; Colorado; Illinois; Kentucky; Maryland; New Jersey; New Mexico; and Washington, D.C. have moved to drop cash bail.

Local jurisdictions have acted as well, including Atlanta; Harris County, Texas; and Jackson, Miss. Prosecutors have declared intent to follow suit in Brooklyn and Manhattan; Richmond, Va.; Middlesex, Conn.; Philadelphia; and San Francisco.

But most states do not limit the practice, although advocates and court rulings are pushing lawmakers in that direction.  Illinois is set to become the first state to completely eliminate cash bail effective in 2023, according to the Illinois Sentencing Policy Advisory Council.

The New Yorker wrote in 2014 about a notorious example of a defendant unable to pay cash bond. His name was Kalief Browder, arrested for robbery in 2010 at the age of 16 and held for three years on the notorious Rikers Island in New York while awaiting trial.

Browder insisted he was innocent and refused to take a plea deal, although he suffered from violence, isolation, and depression behind bars. In 2012, he tried at least twice to kill himself. In 2013, prosecutors conceded they could not prove their case, dropped the charges against him and let him go.

Two years later, Browder committed suicide, according to a 2015 piece by The New Yorker.

In March, the California Supreme Court ruled that keeping a defendant in prison simply because he or she cannot post cash bail violates both state and federal laws. “The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional,” Justice Mariano-Florentino Cuéllar wrote, as quoted in the Los Angeles Times.

“It’s a last resort to take people’s liberty.”

“There has been a lot of focus put on this lately. It’s an issue that’s getting a lot of recognition,” said Jerry Edwards, an Orlando attorney on the ACLU legal team.

The ACLU insists pretrial liberty is a fundamental right that authorities violate when they hold people in jail without formally evaluating whether they belong there because they are dangerous or might flee, regardless of ability to pay. The organization has no problem with the state holding high-risk defendants in jail before trial — but it has to be subject to due process.

And that requires looking into whether they can pay.

However, Florida’s judicial system is failing to conduct such evaluations, Edwards argues. Without that proof, he said, pretrial detention amounts to wrongful deprivation of liberty.

“What separates America from an authoritarian regime is that an authoritarian regime can come and snatch you off the street and throw you in jail without giving you due process, or put you before a kangaroo court without giving you due process,” Edwards said.

“In America, we pride ourselves on protecting people’s freedom,” he said. “It’s a last resort to take people’s liberty.”

In Florida, the state has not yet had to respond to the individual filings on behalf of the 11 plaintiffs in jail in Manatee and Sarasota counties.

In other states, prosecutors have argued that high cash bail achieves state goals by motivating defendants who can post bail to return to court on time or forfeit the cash. For those who cannot post bail, it ensures they comply with court dates by simply not letting them go.

For-profit bail bond companies keep a percentage of a defendant’s bail if he or she appears in court as required, and they return the rest. If the defendant does not appear, he or she forfeits the whole amount, as described in this Axios report.

The United States and the Philippines are the only countries in the world in which the commercial bail-bond business is legal, according to the Prison Policy Initiative, which also reported in March 2020 that nearly a half-million people are held in American jails on an average day accused of crimes for which they have not been tried or convicted.

If due process were granted for all defendants, fewer people would unnecessarily be in jail awaiting trial, potentially losing jobs and leaving families unsupported, Edwards said.

“We’re asking for due process. We’re not asking for a get-out-of-jail-free card,” he said.