Findings from Harris County: Money bail undermines criminal justice goals

by Wendy Sawyer and Emily Widra, August 24, 2017

With growing recognition that money bail has created a “two tiered system of justice” that detains the poor but allows those with money to go free, courts relying on money bail systems face increasing pressure to change. Although the commercial bail industry argues that money bail keeps people safe and ensures appearance in court, we point to a growing body of evidence that money bail actually undermines essential criminal justice goals. Armed with the evidence of harm caused by money bail and pretrial detention, including a recent study published in the Stanford Law Review, policymakers around the country are taking action on bail reform.

This year in Texas, a federal judge ruled that Harris County’s misdemeanor bail system disproportionately impacts indigent residents and violates the Constitution – consistent with the findings of this new study. The judge then ordered all misdemeanor arrestees who are eligible for release but cannot afford bail to be released within 24 hours of their arrest on an unsecured bond (unlike secured bail bonds, defendants will only have to pay if they don’t appear in court). Since the ruling, Harris County began releasing misdemeanor pretrial detainees and implementing a new risk-assessment tool to further reduce the number of people held on misdemeanor charges who are not a risk to the community. (Harris County officials have appealed this ruling, but the Prison Policy Initiative and other organizations have filed an amicus brief in support of the original ruling.)

The judge’s decision comes on the heels of the new study of pretrial detention in Harris County published in the Stanford Law Review, that finds pretrial detention based on money bail “ultimately may serve to compromise public safety” and undermines the legitimacy of the justice process by encouraging guilty pleas, regardless of actual guilt or innocence. Overall, the study finds that the downstream effects of pretrial detention and money bail are inconsistent with the stated goal of crime prevention and that the current money bail system infringes on constitutional rights.

For the study, the researchers looked at the direct and indirect consequences of pretrial detention in over 380,000 misdemeanor cases in Harris County, Texas from 2008-2013. As far as location, the authors couldn’t have chosen a more representative site. Harris County is the third largest county in the U.S.; it includes Houston and is home to a diverse population of 4.5 million residents. In explaining the need for the study, the authors point out that past empirical work has been suggestive, but not conclusive, on the extent to which adverse outcomes for misdemeanor defendants are caused by pretrial detention. So for this study, the researchers included far more extensive control variables than previous studies, including the court’s determination of individual risk, as expressed through bail amounts. The authors conclude that because of these controls, their study shows that pretrial detention itself is causally related to case outcomes and the commission of future crimes.

The Stanford Law Review article is required reading for anyone interested in pretrial detention, money bail, and recidivism. The rigor of the study and depth of the analysis make it a lengthy but worthy read, so we have highlighted the major downstream effects discussed in the study:

  1. Pretrial detention has devastating consequences for individuals. The authors highlight empirical evidence from prior studies showing that pretrial detention has immediate impacts on individuals, including “loss of liberty and the potential loss of employment [and] housing,” as well as threatening a parent’s custody of their children. Even before going to trial, people held in jail suffer many of the same consequences of a conviction.
  2. Money bail compromises public safety. The authors compared individuals who posted bond within the first seven days following the bail hearing with those who were unable to do so. Just one month after bail hearings, there was a significantly higher incidence of new misdemeanor charges among people who were detained pre-trial than similar defendants who were released on bail. Over time, the criminogenic effect is even more pronounced: when compared with similarly situated defendants who were released after a bail hearing, the detained misdemeanor defendants were charged with 22% more misdemeanors in the year after their bail hearings. Felony defendants who were detained pretrial were charged with 30% more felonies after 18 months. The study’s authors conclude, “pretrial detention has a greater criminogenic than deterrent effect.”
  3. Pretrial detention undermines the legitimacy of the court system. This study found that pretrial detention can distort criminal justice outcomes; for misdemeanor defendants, detention increases the likelihood of a jail sentence, length of sentence, and guilty pleas. People detained pretrial because they can’t post bail are 43% more likely than similar defendants who are released to receive a jail sentence. Pretrial detention also doubles the average length of jail sentences compared to those who receive jail sentences but are not detained pretrial. Critically, pretrial detention increases the likelihood of pleading guilty by 25%, with no evidence that this decision is relevant to guilt.

The Stanford Law Review article goes on to explore the constitutional issues presented by money bail, such as equal protection rights, due process protections, and the right to counsel. The authors’ findings provide strong evidence that wealth-based inequality in pretrial detention translates to wealth-based inequality in case outcomes, so bail set without consideration of defendants’ ability to pay violates the Equal Protection and Due Process Clauses. The authors argue that previous Supreme Court decisions on the “limited effect of pretrial custody” were incorrect and that, because pretrial custody has real and harmful implications, bail hearings are “critical” stages of criminal proceedings, necessitating a right to legal representation. The article also points to additional constitutional implications, including excessive cash bail, pretrial punishment, and involuntary plea bargains, which all warrant further attention in both the academic literature and the conversations around bail reform advocacy.

The authors’ findings make a strong case for bail reform that should bring even the staunchest supporters of money bail to their senses. Money bail actually increases risks to public safety and influences case outcomes in ways that contribute to more incarceration, so it ultimately costs more in the long run, with no appreciable payoffs for locking up misdemeanor and other low-risk defendants. The authors rightly call for a shift in the criminal justice system toward “bail systems that reduce wealth disparities, increase public safety, and minimize the lengthy periods of detention that have such high budgetary and human costs.”

Policymakers seem to finally be getting the message — in Harris County and around the country. This January, for example, New Jersey switched from a primarily money bail system to one that makes release decisions based on risk factors instead of a defendant’s ability to pay. (There, reforms are yielding quick results: as of July, the state’s pretrial jail population was down 34% from where it was in 2015.) And last month, Senators Kamala Harris and Rand Paul introduced a bipartisan bill to encourage states to replace or reform money bail systems. Not least because pretrial detention accounts for 99% of all jail growth over the past 20 years, bail reform advocates from both sides of the aisle can agree on the counter-productiveness and harms of pretrial detention.

The study can be found at:
Heaton, P., Mayson, S., & Stevenson, M. (2017). The downstream consequences of misdemeanor pretrial detention. Stanford Law Review, 69(3), 711-794.

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