“No human being should be in jail because they don’t have $150,” said Michael DiLauro, Deputy Public Defender of the state of Rhode Island.
DiLauro was quoting well-known RI defense attorney Jack Cicilline. In an interview, DiLauro recounts the story of how Cicilline was in court one day when he saw a man ordered to pay bail money that he didn’t have. Without a lawyer to represent him, the man was headed for jail until Cicilline walked up to the judge’s bench and pulled out three $50 bills. Cicilline’s words echo a growing sentiment in Rhode Island and around the country: people shouldn’t be going to jail just for being poor.
The most recent data from the Rhode Island Judiciary reports that 21,685 misdemeanor cases were filed in 2016. According to the RI Department of Corrections, 927 people were held in jail last year after being charged with a misdemeanor because they could not post surety (monetary) bail. Of those nearly 1,000 people, 388 (or over 36 percent) spent one to two nights in jail because they could not pay. 14 percent of people were held for three to seven days, and 13 percent were held for a week or longer, with one person waiting in jail for 89 nights before they were released: 89 days, or nearly three months, spent in prison without being convicted of anything. These numbers fly in the face of the US Constitution’s promise to a fair and speedy trial.
For decades, the system was similar—or worse—nationwide. According to a report by the Southern California Law Review from 2012, roughly 25 percent of non-felony defendants were ordered to pay monetary bail in New York State. In Maryland, nearly half of all misdemeanants had to pay bail to go home, until reforms were introduced last year. Lawyer and bail reform advocate Zina Makar said in an interview that, prior to reform, Maryland’s bail system “had no rhyme or reason, and there was no assessment of ability to pay.”
With the help of the Rhode Island Public Defender, legislators introduced a bill (S2416) in the Rhode Island General Assembly this past February with the intent of “decriminalizing poverty”—or eliminating the systems which up until now have resulted in hundreds of people going to jail every year simply because they lack the money to post bail. The bill is one of many this year that aims to lower incarceration rates and reform the way the state handles low-level crime. If passed, people charged with most misdemeanor crimes in Rhode Island will no longer face monetary bail.
Misdemeanors are often considered to be ‘low level’ crimes, and include offenses like shoplifting, trespassing, or marijuana possession. However, potentially violent crimes, like domestic assault and drunk driving, are also considered misdemeanor crimes.
When a person pleads not guilty to a misdemeanor crime in Rhode Island, the two most frequent outcomes are that they are released pending trial, or they are held in jail for lack of bail until their trial. Most people are released on personal recognizance, a legal term indicating that the individual doesn’t have to pay any money to the court to secure release, but instead promises to obey the law and show up for their trial.
The form of bail most familiar to the public, and the one addressed by this reform bill, is monetary bail. If a judge orders monetary bail, the person must raise a certain amount of money before they can be released, as a guarantee that they will appear in court. Once they arrive at trial, the money is returned to them. However, if the person cannot raise the bail money, their only option is to await their trial in jail.
Senator Ana Quezada, a Democrat representing Providence, is the lead sponsor for the bill in the Senate, and explained that she supported it because she saw the way that even a few days in jail was harming her constituents, many of whom cannot afford to pay bail money.
“It can change their whole life, just a few days of them staying there for no reason,” Quezada said in an interview. She proceeded to systematically lay out the path by which a minor crime can transform the life of an upstanding citizen into a jobless nightmare.
“Let’s say you have a job,” she began. “You’re arrested, and you’re not able to show up on Monday. You’re arrested, so you’re not able to call. You can lose your job.” Shaking her head in disgust, she added, “Now you have a record. That’s another thing that could prevent you from going back to your job.”
As author of the bail reform bill, Deputy Public Defender DiLauro testified to the research he compiled over the past year showing the harmful effect even a few days in jail has on an individual.
“Studies find that a defendant that is subject to pretrial detention is three to four times more likely to have their case result in a jail sentence, and any jail sentence that is imposed will be for a longer period of time than that of persons who are not detained,” he said.
The implication that time spent in jail prior to conviction impacts the outcome of the case is a startling one. While no causal link has been drawn, the correlation suggests that judges view defendants who have spent time in prison as ‘more criminal’ than those released on personal recognizance.
According to Alexandra Natapoff, Professor of Law at the University of California, Irvine, a fear of being held in jail indefinitely causes many people charged with misdemeanors to be falsely convicted, even in cases where there would not be enough evidence to find them guilty at trial.
“Many arrestees plead guilty to petty offenses in exchange for a sentence of time served as a way of terminating what might otherwise be a longer period of incarceration,” she said.
At the Senate Judiciary Committee hearing, Senator Quezada added that the problem seemed to be largely rooted in a lack of resources. “A lot of the people in my district are people of color, and a lot of them don’t have money to pay a good lawyer who can take you out in a heartbeat,” she said.
While this issue of adequate legal representation is one that should technically be solved by the presence of public defenders in the Judiciary, Representative Jason Knight noted that in Rhode Island, defenders are so overloaded with cases that they can only address a fraction of the problem.
“I’ve seen this personally,” Knight said. “You have a public defender running around two of the busiest courtrooms in the state on any given morning and… [meanwhile] you could have five other people go before the judge unrepresented.”
Deputy Public Defender DiLauro testified in favor of the bill in both the House and the Senate. He cited Rhode Island state law 12.13-1.3, from the 1990s, which states that if someone is being held because they can’t afford to pay bail, “the Department of Corrections is supposed to take a proactive role in figuring out why these people are detained and if they can be admitted to a lower bail or personal recognizance.”
However, after speaking with officials from the Department of Corrections, DiLauro learned that this law was not being applied. “They do not have the ability or the resources to do what this statute already says they’re supposed to be doing,” he said.
DiLauro’s testimony was supported by the Rhode Island ACLU, but opposed by the State Judiciary. In her testimony in the House hearing, judicial representative Elizabeth Suever claimed that passage of the bill would tie judges’ hands. She took particular issue with the words “may not” in the bill. This language, she said, would severely limit judges’ discretion in imposing bail in all cases where the type of crime was not listed as one of the exceptions proposed in the bill, such as cases of domestic violence. While judge’s discretion––and the ability to look at a situation as more than a collection of quantifiable actions––is a critical component of any legal decision, Suever’s argument seemed to veer dangerously close to an endorsement of racial profiling.
“What if someone appears before you and they seem off in some sort of way, but maybe you don’t have any evidence before you specifically that they are dangerous?” Suever said. “Don’t you want to have that ability to set some kind of financial condition on that person’s release?”
Representative Knight, however, countered that the bill would actually increase public safety by forcing the judge to consider a pretrial services report before determining whether someone is a threat to public safety. The reports are a compilation of information about the defendant intended to assist judges in delivering their verdicts. Reports contain basic information about the individual (name, age, address) as well as any employment, family, and criminal history deemed relevant by pretrial service workers. Judges use this information in combination with what is heard in court to determine whether or not to recommend alternatives to jail (personal recognizance, diversion programs, etc.) for the defendant.
The importance of a pretrial services report was seconded by Senator Harold Metts, a co-sponsor of the bill. Metts said he would rather “spend the money upfront” on pretrial services, than on incarceration fees later on. The senator estimates that in Rhode Island, the average yearly cost of incarceration for one adult is $40,000. That cost more than doubles to $98,000 for minors at the juvenile training school—and, right now, the state is paying far more for inmates than pretrial service employees.
While there is no profit incentive for the state to detain people, the bail bond industry thrives off of the current cash bail system. Nationwide, the lobbying of bail bondsmen has prevented the passage of legislation to reform the current system. Of her efforts in Maryland, defense attorney Makar said, “The legislature’s been diluted by the bail bondsman efforts. The money has just seeped in to so many pockets of legislators that it’s been impossible to get any kind of reform passed [through the legislature].”
In fact, in order to achieve any kind of change, Makar bypassed the legislature altogether and sought the assistance of the District Court. Makar argued to District Court Chief Judge John Morrissey that Maryland’s current bail laws violated the “equal protection” clause of the 14th Amendment.
“If you’re giving somebody bail, that means that you should release them, and if you should release them, they should have the equal opportunity to be able to get out,” she said in an interview. Makar added that ability to pay must be a necessary consideration, “otherwise somebody of lesser means isn’t able to make the same bond and get the benefit of release that somebody with more means does.”
Now, Maryland law has been changed so that an assessment of ability to pay is required, and no person can be kept in prison because they are unable to afford their bail. Although the law only went into effect in July 2017, Makar says that already, “it has made a huge difference in the name of progress.”
In Rhode Island, bail bondsman Frank Castelli has already seen business drop due to earlier attempts at bail reform, like the Justice Reinvestment Initiative signed by Governor Raimondo last year, which increased the prevalence of pretrial services and introduced several diversion programs in the Judiciary. In defense of his industry, Castelli cited concern for public safety. “The pretrial service monitoring people only work from nine to three,” he said. “So when you have dangerous people who get out there and reoffend, the only people to stop them are the bondsmen.” However, given that the current bail reform bill only targets misdemeanor crimes and contains caveats for offenses like drunk driving and domestic violence, it’s difficult to see that any individuals arrested for these offenses would be an immediate danger upon release.
In Rhode Island, it may be some time before the bill becomes law. Both the Senate and House Judiciary committees have decided to hold the bill for further study, meaning that it will not be reviewed again until the 2019 legislative session. In the interim, DiLauro is meeting with both sponsors and opponents of the bill in the hope of finding some kind of compromise. Although it sometimes takes years of introducing, revising, and reintroducing a bill before it becomes law, the bill’s sponsors are optimistic.
“I will do everything in my power to make sure it passes this year,” Senator Quezada said. “It’s something I will fight for. ”
In the past three years, the trend in state governments has largely been towards bail reform and elimination. The Brooklyn, New York, District Attorney eliminated monetary bail for most crimes in 2017. Manhattan District Attorney Cyrus Vance followed suit this January.
“A systemic reliance on bail for low-level offenses is out of step with a reformed, 21st-century justice system,” Vance said in a press release. “It is fundamentally unfair and does not make us safer, given the range of effective alternatives to pretrial detention now at our disposal.”
This sentiment could not be echoed more strongly than by those people in Rhode Island who have been victimized by the current bail system. In her public policy thesis completed in 2016, Brown University graduate Rachel Black interviewed 21 inmates who were in jail because they couldn’t post bail. One man, whom Black referred to as Jordan, perfectly captured the anxiety and anger defendants often feel at the injustices they repeatedly face in the courtroom: “I don’t want to see no judge when I have no money.”
In its existence as an institution, the Rhode Island Judiciary promises state residents equal protection under the law. The fact that it has come to be seen by some as nothing more than a tax collector to be feared and avoided is, at the very least, a warning sign to the Judiciary––both their promise and their system are broken.
IVY SCOTT B’21 would vote yea.