Risk of conviction, sentences go up for people held before trial

Bail reform has become a hot topic recently because the system didn’t always run this way. Today, it’s common practice to hold people in jail before trial because they can’t afford bail or are denied bail. That has left hundreds of thousands of people behind bars even though they haven’t been convicted of any crime.

According to a recent report by the nonprofit Vera Institute of Justice, there are approximately 740,000 people in U.S. jails. Of those, only about a third have been convicted of a crime — the rest are entitled to the presumption of innocence but remain jailed nonetheless.

Moreover, the number of people being held in pretrial detention jumped by 433% between 1970 and 2015, according to the Vera Institute. Much of that increase is due to the fact that more and more jurisdictions are requiring up-front bail in most cases.

Bail has traditionally been meant to accomplish two things. First, it is intended as an incentive for criminal defendants to show up on their court dates. Failure to show means loss of your bail. Second, judges can issue high bail or deny it altogether upon a finding that the defendant is a danger to the community.

There is a great deal of controversy over whether requiring up-front bail is actually an effective way to get people to show up to court. What we do know is that people are routinely jailed for being unable to afford the bail set for them. It has created a system where rich people spend their time before trial out in the community, while poor people get locked up, lose their jobs and housing, and face tremendous negative consequences even if they are innocent.

The longer the pretrial detention, the worse the outcome

The Vera Institute’s report does more than lay out the problematic nature of our cash bail system. It also found that being held in jail before trial has consequences.

“The issue isn’t just about eliminating money bail, but also about promoting measures that will result in fewer people behind bars,” says the Institute.

That’s because longer pretrial detention is associated with an increased likelihood of conviction and a harsher sentence upon that conviction. There should be no connection between your ability to pay bail and your chances of conviction or a harsh sentence, but the Vera Institute found a strong connection.

The reason may be simply that it’s much harder to mount an effective defense from inside a jail cell. Pretrial detainees probably spend far less time with their attorneys than those who are not jailed. They also have less opportunity, due to poverty, to take part in “good behavior” measures that can reduce the chance of conviction or reduce sentences.

In the 1987 case of U.S. v. Salerno, the U.S. Supreme Court said that “in our society liberty is the norm.” It went on to say that pretrial detention should be a “carefully limited exception.”

Yet the average bail amount for a felony offense is between $10,000 and $12,000. Even paying a 10% bond is beyond the means of many people. And, bail is often denied based on the seriousness of the offense.

If you have been arrested, getting affordable bail is the first challenge — and it can be crucial to meet that challenge. You can’t afford to go it alone. Get an experienced criminal defense attorney right away.