Cash bail reforms easy to circumvent, critics contend

Activists fear defendants who are poor will remain disproportionately jailed

A new Georgia law requires judges to determine a defendant’s finances before ordering the person to post bail.

But some advocates for curtailing bail say there are ways to circumvent the new mandate, leaving indigent defendants at continued risk of being jailed because they don't have the money to post bond.

In 2014, Atlanta lawyer Jonathan Rapping won a MacArthur Foundation “Genius Grant” for his ongoing efforts to make the criminal justice system more fair for poor defendants.

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"Judges will now have to ask about assets and income, but the fact that a person living paycheck to paycheck owns a television or a watch does not mean they can readily come up with bail," said Jonathan Rapping of Gideon's Promise, which trains public defenders how to be more effective. "Nothing stops judges from looking at a person's clothes or jewelry and deciding they can afford bail."

On Sunday, the final chapter of Gov. Nathan Deal's criminal justice reform went into effect, placing limits on cash bail. The law explicitly says police can issue citations for some low-level, nonviolent crimes instead of putting the alleged offender in jail to await a hearing before a judge.

For other, more serious crimes, a defendant would only be released after seeing a judge, who would have to consider the defendant’s financial circumstances before deciding on the bond amount.

Advocates for curtailing bail say taxpayers have to cover the cost of jailing low-level offenders. And if such defendants lose their job because they are jailed, that creates another burden on taxpayers. Jailed defendants, advocates say, are more likely to plead guilty just to get out of jail, even though they could be acquitted if they went to trial.

Advocates say pretrial detention should not be used as punishment. They say defendants should be held in jail pending trial only if they pose a danger or are likely to flee.

Others disagree. “They want to make this issue about caging poor people,” said Scott Hall, vice president of the Georgia Association of Professional Bondsmen. “This is about accused criminals and denying victims the right to justice.”

One example raised during an Atlanta City Council debate this year about eliminating bail for many misdemeanor and city ordinance violations was Sean Ramsey. He was arrested in September near the state Capitol for holding up a handwritten cardboard sign that read, "homeless, please help." He could not pay a $200 bond, so Ramsey remained in jail for 2½ months until the Southern Center for Human Rights interceded on his behalf.

Another example was a 45-year-old man who had covered himself with his own feces and was arrested for shouting at customers at a Boulevard gas station. Randall McCrary was held in jail almost three months because he could not pay a $500 bond. The Southern Center for Human Rights secured his release.

The Municipal Court of Atlanta is where city ordinance violations and some misdemeanor charges are heard. Atlanta Mayor Keisha Lance Bottoms ordered reforms to the court’s cash bail system. 

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There is disagreement about whether a defendant who posts bond is more likely to return to court than a defendant released without having to pay bail.

Marissa Dodson, public policy director at the Southern Center for Human Rights, said a study in Pickens County in North Georgia found a 30 percent drop in the number of defendants failing to appear after court-date reminders were sent via text message. Last year, Atlanta Municipal Court began doing the same.

“At the end of the day, money does not end up being a factor in if a person shows up in court. It’s notification,” Dodson said. “In fact, we have worse outcomes for individuals the longer they stay in jail.”

But an opposite finding is noted in a case pending before the 11th U.S. Circuit Court of Appeals involving Calhoun Municipal Court's cash bail system.

Attorneys for the North Georgia town said in a court filing that during the 15 months before the end of the cash bail system, Calhoun Municipal Court issued 27 bench warrants for defendants who'd failed to appear. Yet in the 15 months after a federal judge ordered the city to initiate a policy of releasing low-level offenders on a signature bond, 85 bench warrants were issued for people who'd failed to appear.

Hall, of the professional bondsmen association, said the requirement to post bond means defendants have “skin in the game.” And he particularly opposes allowing officers to write a ticket and release a defendant without first asking a judge about bond.

"We want a judge to look at all the facts and say, 'I don't think a bond is needed, so we're going to release you.' Or, 'This guy is from Anchorage, Alaska, and harm was done. … I'm going to require a $5,000 bond.' They are going to require you to show up, because that victim is denied justice when they don't show up."

State Sen. Jesse Stone, R-Waynesboro, in a 2016 AJC file photo. 

Credit: Jim Galloway

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Credit: Jim Galloway

Nevertheless, Republican state Sen. Jesse Stone of Waynesboro — chairman of the Senate Judiciary Committee that handled the governor’s criminal justice reform legislation — said he thinks “there is more to be done” regarding reforming the cash bail system.

Dodson said reform advocates would like more alternatives to cash bail, “especially for misdemeanor (charges) where people have a statutory right to be released.”

But attitudes must change too, said Rapping, who is adamant that the cash bail system is not about to end, although it may improve.

“We’ve become so addicted to holding people pretrial, people who are presumed innocent, that nobody realizes there’s anything wrong with it,” Rapping said. “It’s going to take a re-education of people who run these justice systems before we see change.”