Exorbitant bail is the default in many courts in America, even though judges aren’t actually required to set it.
In Alabama, it certainly is.
It is reported that one court in Louisiana had minimum bail floors:
Cantrell has acknowledged that he refuses to set bail lower than $2,500, no matter the facts of a case. “We don’t go any lower than $2,500 in this court,” he told one defense attorney in 2016. When attorneys object to this practice, Cantrell sometimes threatens to hold them in contempt of court—for which they could serve jail time themselves.
A great article in the Atlantic highlights a legal development in New York, though:
Public defenders in Brooklyn are in the process of launching a new initiative intended to disrupt this pattern. When a judge sets bail that a defendant can’t afford, the Brooklyn Defenders Service will systematically challenge the judge’s order. If that fails, they’ll appeal it. The goal of the project is to begin to repair New York City’s long-criticized bail system by persuading and incentivizing judges to focus on bail’s essential purpose: It’s collateral meant to guarantee a criminal defendant’s return to court, not punishment for a person accused of a crime.
It is time that Alabama lawyers, not merely seek a bond reduction, but to challenge the constitutionality of money bail altogether.
Here are the basics of the Brooklyn Defenders’ approach: An associate with the law firm Kramer Levin Naftalis & Frankel, which is partnering with the organization, will work pro bono with one of the public defenders to document each client’s finances, background, and community ties. They will then present their findings to a judge and either argue that bail is unnecessary or propose a form of bail the client can realistically meet. Where bail remains outside of the defendant’s financial reach, they will challenge the ruling in an appeals court.
Alabama lawyers must be willing to disrupt the status quo.
Public defenders concede that defense attorneys share some of the blame: From the outset, overworked criminal-defense lawyers lacked the time and resources to dig into their clients’ backgrounds and challenge the many bail determinations that departed from the law.
Litigation has proved successful too:
Recently, lawsuits challenging money bail have spread across the country. Many of the cases have been spearheaded by Alec Karakatsanis, who worked as a public defender for four and a half years before focusing on fighting back against what he calls mass “human caging.” He brought his first money-bail case, against Clanton, Alabama, in early 2015. The organizations that Karakatsanis works with have filed at least a dozen suits challenging bail, with 10 already settled in their favor. While Karakatsanis argues that the impact has been limited, there have been victories. After he filed a class-action lawsuit against Cook County, Illinois, the county’s chief judge issued an order that eliminated the practice of setting bail amounts so high that people end up in jail.
It is all too easy to forget the consequences of being jailed:
Our willingness to lock up legally innocent people has huge—and often dire—consequences for those who are arrested. Jail keeps them from their work and family responsibilities, which in turn leads to missing rent and car payments. Those who end up detained, after all, have median incomes that put them in the poorest one-third of the country. Missing even a few days of work can be catastrophic. “The negative impact of jail starts to accrue after the first 24 hours, and it’s really bad by the third day,” says Cherise Fanno Burdeen, CEO of the Pretrial Justice Institute.
And the pernicious effects of being jailed don’t stop there. Those who are detained before trial are far more likely to plead guilty—a desperate attempt to regain their freedom, even if temporarily—and end up being sentenced to serve time. Wilkeitha Washington, known by her friends as Keedy, has a gregarious demeanor that doesn’t fade when she recounts her time in the Orleans Parish jail. But the pain she’s experienced is still evident. After she was arrested for cocaine possession, her bail was set at $5,500—more than she could pay, so Washington sat in jail for weeks. But “jail” is hardly the right word to describe the facilities. The inmates were housed in outdoor tents with scarcely any protection from the elements. “Mosquito bites, rats, roaches…. Anything could bite us,” she recalls. “A dog don’t like to be in a cage, so just picture a human being in a cage.” When Washington had to decide whether to plead innocent and take her case to trial or plead guilty and get out of jail then and there, she chose the latter. “I know if I really try to fight this, I could probably win,” she says. But by giving up, she was guaranteed to go home and return to her four children. Washington got out of jail, but she later went back behind bars to serve out her sentence.
At a minimum, if charged with a crime, you need to be prepared to evidence connections to community, employment prospects, history of appearances at prior hearings. If a violent crime is alleged, present a plan to assure you will not contact the victim.
