Cash bail stacked against poor

For many Americans, the booking of Donald Trump at an Atlanta jail was a comforting reminder that nobody was above justice. Unlike his previous cases, Trump was processed through a familiar pattern that included the famously scowling mugshot and the requirement to post bail.

That last point, however, raises a valid question. George officials released the former president on a $200,000 bail — “Trump change,” as more than one pundit referred to it. Is that really comparable to the practice of levying bails on defendants who have not been convicted, and who can’t afford even a $20,000 bail? In states like Florida, a backward bail system is keeping people trapped in jail for months while they await trial, or forcing them to pay for bail bonds (money they will never recover) at the risk of leaving their families unable to cover basic needs or at risk of losing their modest homes.

Trump was treated equally, yes. But he was also treaded in a way no American should be.

A brutal system

The money bail system is a national disgrace that should have been abolished long ago.

People are rotting and sometimes dying in American jails for lack of even $250 to make bail or hire a bondsman.

Commenting on Trump’s release, a Los Angeles Times editorial told of a man named Lashawn Thompson. Charged with spitting on a police officer, he spent three months in the psychiatric wing of the same Fulton County jail because he didn’t have $2,500 to put up or the 10% fee for a bail agent.

“Thompson remained in the decrepit Rice Street dungeon for months, his already compromised mental health declining, his body attacked by bed bugs,” the newspaper wrote. “If he had even a fraction of Trump’s money, he’d have gone home to be treated and to prepare a legal defense. But Thompson died in jail, never having gone to trial. He was accused only of spitting, not undermining democracy.”

His was one of three recent pretrial deaths in that barbaric jail. The others who died were charged with burglary and shoplifting. After Thompson died, $500,000 was budgeted to deal with bed bugs, lice and other vermin. His family will receive $4 million for severe neglect of his physical and mental health.

A staggering cost

But one dramatic case can’t tell the whole story — on either side of this hot debate. The bulk of the evidence reveals myriad problems with the system, starting with the undeniable reality that -pretrial detention gives prosecutors an unfair advantage over poor defendants. While they are incarcerated, they can’t work and often find that upon release they’ve been fired.

Many plead guilty or no contest just to get out of jail faster, studies show. One analysis of several national studies, published in 2021 in the journal Criminal Justice Policy Review, found that incarcerated defendants are 2.8 times more likely to plead guilty than those who go free, and that prosecutorial decisions often exploit this to force pleas in cases.

It’s not hard to see how the money bail system is incompatible with the fundamental premise of U.S. law that defendants are presumed innocent until proved guilty — especially when there are good alternatives, including community monitoring, that do an adequate job of ensuring that defendants show up for trial.

That would free up time for judges and prosecutors, who would be better able to evaluate and identify those truly dangerous individuals who should be held on high bails or without the opportunity for pre-trial release.

For taxpayers, the price of the status quo is staggering. Our nation is by far the world’s leading incarcerator. Some 11 million people are sent to jails or prisons every year with nearly 2 million behind bars on an average day. Black Americans account for 38% of those, nearly three times their share of the U.S. population. The bail system severely punishes poverty.

About 619,000 prisoners are in local jails, according to the nonprofit Prison Policy Initiative, with about 400,000 awaiting trial, mostly for nonviolent crimes that pose little public threat. Across the nation, many public and nongovernmental entities are striving to right that wrong and making laudable progress.

There’s ample evidence that release on recognizance does not contribute significantly to new crimes or no-shows.

That’s why so many nations, and a growing number of U.S. states, are seeking to eliminate or drastically cut the number of cases where money bail is assessed.

Shamefully, Florida’s leaders are fighting to move in the opposite direction.

The Illinois example

Illinois is about to become the first state to completely eliminate cash bail. Its Supreme Court recently upheld 2021 legislation that also entailed police and prison reforms. Prosecutors and sheriffs lost an all-out litigation assault on it.

“Pretrial jailing can actually increase the likelihood that someone will be rearrested in the future because it destabilizes their lives,” a Prison Policy Initiative executive, Sarah Staudt, told NPR. “They lose their employment, their housing, sometimes custody of their children. So really, jail make us less safe. We should be using it only when it’s absolutely necessary.”

When the law takes effect Sept. 18, authorities must apply the “least restrictive” non-monetary conditions on pretrial release. Defendants considered to be flight risks or dangers to the public will be detained no matter how much bail they might afford. Judges may impose ankle monitoring or supervised home detention but must consider the defendant’s ability to pay.

Florida’s wrong direction

Florida should be following suit. Yet threats from Gov. Ron DeSantis prompted the Miami-Dade judiciary to shelve a local reform two years in the making. The governor’s anti-riot legislation, temporarily blocked in federal court, requires defendants to be jailed until judges set bail, no matter how trivial the offense. Meanwhile, the governor signed a 2023 bill (HB 1627) that strips judges of much of the discretion in bail-setting. That is “sentence first, verdict afterwards,” as the Queen of Hearts says in “Alice in Wonderland.”

Playing politics with the issue, Florida Chief Financial Officer Jimmy Patronis recently criticized the Illinois bail reform in a press release inviting business owners to move to Florida.

One might think he would have enough to do with Florida’s insurance crisis than to harp over another state’s actions. But bail bonds companies are a powerful under-theradar political interest group. The insurance industry Patronis oversees also underwrites all professional bail bonds and reaps $2.4 billion a year from it nationwide.

If Patronis runs for governor, as expected, he’ll be looking for even more insurance money than the $2.2 million that the Palm Beach Post attributed to him since 2019. His objections to bail reform should be seen in that light — along with the governor’s desire to appear tough on crime with little concern for the hundreds of thousands of Floridians trapped in local jails, and the far greater burden on local taxpayers who are spending billions to feed, clothe and house prisoners who could be safely working while awaiting trial on non-violent charges.

The Orlando Sentinel Editorial Board includes Editor-in-Chief Julie Anderson, Opinion Editor Krys Fluker and Viewpoints Editor Jay Reddick. The Sun Sentinel Editorial Board consists of Editorial Page Editor Steve Bousquet, Deputy Editorial Page Editor Dan Sweeney, editorial writer Martin Dyckman and Anderson. Send letters to the editor to insight@orlandosentinel.com.