Unjust Pretrial System -- Bail for the Rich, Jail for the Poor

What should we make of the news that music producer Phil Spector -- suspected of shooting to death a woman in his home -- has been released on $1-million bail while thousands of Californians accused of lesser crimes sit in dangerous, overcrowded jails, unable to afford bail of a few thousand dollars? Is it another example of how U.S. justice favors the rich, or is it the only realistic way to balance the presumption of innocence with the need to bring defendants to justice?

In American law, punishment is supposed to follow conviction, not precede it. There are only two reasons justify jailing a person who has not yet been convicted: securing his or her appearance for trial and protecting others from harm.

Pretrial detention is meant to guarantee that the defendant does not flee or harm others while awaiting trial. But because detention is such a severe sanction, it should be used only when other ways of ensuring a defendant’s compliance are unlikely to work. That is where bail comes in.

The theory is that people who risk losing a lot of money will comply with the court process. But that’s bad theory. First, it is too easy on the wealthy, who are often willing to forfeit money to escape justice, as the recent case of rape defendant Andrew Luster shows. Luster’s net worth has been estimated at $30 million.

Second, it is too hard on people of modest means. Even though many would comply with court orders, they are held in frankly punitive institutions. Nationally, of the 350,000 unconvicted defendants in jail, only about 20% have been ordered held without bond. The rest can’t afford bail.

Fifty years ago, the Vera Institute of Justice helped lead a national movement for bail reform. Its work was based on evidence that most defendants would comply with court orders just as effectively without money bail, and that violations while on bail could be reduced. Many states and the federal government began experimenting with pretrial supervision, drug testing and other devices to improve pretrial justice.

California not only stuck with money bail but continues to use an irrational system that varies widely from county to county. Judicial committees in each county establish their own bail “schedules.” For example, the schedules in Los Angeles and Orange counties suggest $1 million for murders like the one Spector is suspected of committing. In such a system even $1 million may not be incentive enough for a wealthy defendant to return to court. Sacramento’s schedule suggests denying bail on the same charge.

The solution is not to deny bail more often across the board. Instead, California should rebuild its system of pretrial justice on the basis of what works. The role of money should be reduced in favor of pretrial supervision that burdens rich and poor alike. Such supervision can include unannounced home visits.

Where money bail continues to be used, amounts should be calibrated to each defendant’s ability to pay. For example, courts could set bail in “units” with monetary values pegged to the wealth of the defendant. The same bail of 1,000 units might require a poor person to post $500 but a wealthy person to put up $5 million. Many European courts use this method to set fines in criminal cases.

Today, a system heavily reliant on traditional money bail is so out of step with the best national and international practice that its public display, as in the Spector case, is embarrassing. The results of the use of money bail are also deeply unfair, particularly for the poorest citizens. California should seize the opportunity to remedy both the indignity and the injustice.