Today’s Post-Gazette article is fair overall. https://tinyurl.com/ycv3qwel. However, there is one issue that I would like to discuss: the dilemma of crafting appropriate bond conditions for a defendant who may be a flight risk, but who does not have the means to pay a sufficient surety in the form of cash.
The problems with cash bail are legion but essentially, misuse or over reliance on cash bail is a major contributor to mass incarceration, enriches private interests at the expense of taxpayers (who bear the burden of unnecessary incarceration costs), offends civil liberties when amounting to the denial of bail by another name (i.e. when the cash bail-amount is far beyond what the defendant reasonably could pay), has excruciating human costs in terms of trauma and loss of housing or employment, and raises access to justice issues by fostering a two-tiered criminal justice system whereby the rich get free and the poor get jail.
In a situation where information before the court suggests that a defendant is a flight risk, cash bail may be an appropriate condition of release, if there is also information before the court suggesting that the defendant has the means to pay an amount that will be sufficient to ensure appearance and compliance with bond conditions. Oftentimes, defendants do not have sufficient means in the form of cash, but they do have friends or family members who care about them enough to serve as their personal surety. This is where nominal bail can be a useful tool, because the nominal bail rule allows an organization, individual, or bail agency to serve as the surety.
In a nominal bail situation, the surety is not the small amount of cash that a defendant pays. It is the implication that the defendant’s mom or best friend can be fined unto $5,000.00 if the defendant fails to appear for court. One of the negative externalities of over relying on cash bail is that we are conditioned to see nominal bond as a free-pass, but when I rely on nominal bond that is not the case at all. In fact, I see a lot of potential in nominal bond. For example, in reviewing my bail decisions I’ve found that addiction sufferers are both at risk of failing to appear for court, and unable to produce a friend or family member who is willing to serve as their personal surety. In response, I have raised the idea of organizational stakeholders as sureties in such cases. Other options include granting non-monetary bond with the condition of “release to inpatient only,” or denying bail outright. These are extreme measures that I try to avoid if the defendant is not a clear risk to public safety. But sometimes these are the only options.
In my mind, the key is to have options, an abundance of alternatives to cash bail. I believe that we have the tools and the resources within our reach, but coordinating them is complicated. First things first, I hope to speak with Sheriff Mullen about his concerns in the very near future. In addition, with the news that yesterday California became the first state to completely eliminate cash bail, I think that we should celebrate by at least exploring a path to the same. California’s journey began when the Chief Justice of their state Supreme Court established a Pretrial Detention Reform Working Group. I would respectfully suggest that we take similar steps here in Pennsylvania, and even in Allegheny County.
Developing alternatives to cash bail is a national trend on the rise. It is essential to pushing back against mass incarceration. I am confident that our state and local courts are motivated to not only join the trend but to take the lead.
