According to a new report from the Pretrial Justice Institute, Georgia’s pretrial justice system is failing. At the heart of this failure is a money bail system that traps nearly 20,000 Georgians not convicted of any crime in jail simply because they cannot afford bail. As a former District Attorney of DeKalb County, I devoted my career to locking up dangerous criminals. But money bail unfairly punishes the poor, overcrowds our jails, and allows wealthy defendants to buy their way to freedom. In the interest of equal justice, Georgia should eliminate money bail for misdemeanor offenses. By replacing it with pretrial conditions that are not based on financial factors, we can protect public safety and ensure that no one’s freedom is tied to their ability to pay for release.
In addition to the dangerous mental and physical health risks of overcrowded jail conditions, pretrial detention can have cascading effects on people’s lives — including loss of employment, housing, and child custody. According to a Harvard Law School study, it’s more difficult for defendants stuck in pretrial detention to mount an effective defense, and so they are more likely to plead guilty, to be sentenced to incarceration, and to receive longer sentences. Moreover, people of color are less likely to be released without a bail requirement and are more likely than other defendants to receive higher bail amounts.
Some defenders of the status quo claim that money bail is needed to prevent dangerous criminals from fleeing before trial. But let’s look at what we know. At any given time, close to 450,000 people — including 20,000 Georgians — are in pretrial detention in the United States. This includes both those denied bail and those unable to pay the bail that has been set. For those who are denied bail, the government must demonstrate that detainment is necessary to ensure appearance in court or to protect public safety. But for the latter group, they remain incarcerated only because they cannot afford bail, not because they are of any greater flight risk than someone who has the money to pay.
Most people arrested in Georgia for misdemeanor offenses do not pose a flight risk nor are they a threat to public safety. In order to reduce our overcrowded jail populations, Georgia should follow the lead of most states and allow law enforcement to issue citations for certain misdemeanor offenses — such as marijuana possession — in lieu of arrest. Furthermore, Georgia courts should impose the least restrictive non-monetary conditions necessary to ensure court appearance and public safety. Despite popular misconceptions, the payment of bail is not the most effective way to ensure court appearance or to protect public safety. Many states, including Arizona and Kentucky, no longer impose money bail and have been able to reduce their jail populations and increase court appearance rates without endangering public safety.
Across the country states and local governments are ending the practice of wealth-based detention. These jurisdictions are benefiting from pretrial reforms that reduce jail populations and keep crime rates down. Last week in Georgia, at the strong urging of new mayor Keisha Lance Bottoms, the City of Atlanta unanimously passed a law that eliminated cash bail for most minor non-violent offenses. Statewide reforms to misdemeanor bail are also expected this year. Gov. Nathan Deal’s Council on Criminal Justice Reform will soon release recommendations to the General Assembly intended to fix the state’s failing pretrial system. If we strive to achieve a justice system that provides equal justice for all, we must reserve our prisons and jails only for those who threaten our life and liberty. And if we hope to lift up our poor, we must never let them be unjustly broken by a system that claims to serve and protect.
J. Tom Morgan is former District Attorney of DeKalb County and a professor of criminal justice at Western Carolina University. He works with Law Enforcement Action Partnership (LEAP), a group of prosecutors, judges, police, and others who seek to advance drug policy and criminal justice solutions that improve public safety.