There’s currently a big controversy about detentions of people coming over the southern border, as to how many detention beds should be available. Dems have a problem with the number of beds that the President wants, and Republicans are criticizing Dems for not wanting to detain everyone coming over the border.
This got me thinking about how people are treated if they are arrested on suspicion of a crime in the U.S. According to The Google, there are well in excess of ten million arrests each year. In rough numbers or percentages, how many of those people would be prohibited from leaving jail before their trial, either by judge’s order because of their danger/flight risk, or because they could not afford bail?
I don’t know if someone goes around and tallies up the number of people who get remanded by every jurisdiction. I can say the mechanism for assigning bail it’s different in every jurisdiction. Of course I am only personally familiar with New Jersey. New Jersey has affectively eliminated bail except for contempt of court failure to appears. What happens here is any violation that would be called a misdeamenor in most of the country (not called that here but why complicate things) will be issued a summons. For felonies some math has to be done. Several factors are taken into account such as criminal history, type and grade of crime and history of failing to appear. Information gets put into a formula and a number pops out. The prosecutor is contacted and then the judge. If the score is high enough the suspect is remanded to county jail. There is no bail. The law states he must be heard by a county judge within 48 hours. When they have that status hearing it is then determined if he will remain in jail or be released possibly while being monitored. So you’re either going to be in county jail or released without any bail changing hands. This system means that suspects of some very serious crimes get released on a summons. I’ve seen it up to charges of sexual assault. All because they didn’t have an extensive criminal history. I’ve seen shoplifters go to jail because of their criminal history. Even the extremely serious cases that do to go to jail usually get released within 48 hours. Really the only time you’ll have to pay bail is if you don’t come to court for your traffic ticket.
Loach, that’s very helpful. Just to make sure I understand, basically all misdemeanor charges in your jurisdiction end up with the arrested not posting bail but essentially being in their honor to show up to court (with penalties if they do not)?
So, if the arrestee’s score is below a certain level, he is cut loose without ever seeing a judge? Where does this happen? At the police station after booking or do you do all of this at the scene and in your patrol car?
Can the prosecutor object to a release no matter the score or is below a certain score an automatic release?
In your opinion, how do you think the new system works?
From afar, it seems like an excellent change. I understand that it might need tweaked here and there, but it seems much more honest than the system we have.
We have this grand pronouncement that unless you are charged with a crime that carries a life sentence, you are entitled to reasonable bail. But the judge who thinks you are a danger will set a $1 million bail claiming it is reasonable. I ask the judge (in a different way) how such a bail amount can be reasonable when less than 1% of the community would be able to post such an amount.
So, in practice, they hold people but it is wholly subjective and based upon the whims of whichever judge you draw. Your system seems more transparent.
But, to the OP, at least here, if we are talking about minor crimes, where the bond is less than $10k, for example, and it has been a couple of months and the person has shown an inability to post it, almost every judge I know will then release the person on recognizance. But sometimes people slip through the cracks. If you have a lazy defense attorney, for example, he may never petition a higher court to reduce bond.
Interesting, thank you. So let’s say 100 people get arrested for a “minor crime” in your area. How many of them do you guess would be released from jail within a couple days? 20? 50? 90?
(Surely you don’t have actual statistics at your fingertips, I’m just soliciting a guess based on your experience.)
Not all arrestees need bail; many will be released within a few hours of arrest once the cops establish that they have the wrong person, or that the complaining witness doesn’t want to assist in a prosecution (a lot of arrests are for domestic violence). At any given time, there are about 700,000 people in county jails or the equivalents nationwide, and about two thirds of those are pretrial detainees (meaning they were denied bail, could not make bail, or have not yet had their bail conditions set).
If they flee back to their home countries, the government’s ends are met. These people are detained for deportation proceedings, not for criminal proceedings (unless they are independently suspected of a crime).
Keep in mind, the issue “detention of people comin over the southern border” the issue is not that they’d skip “bail” and go home, but that they would skip bail and NOT go home. Then they’d be in almost the same situation as those who made it in without being caught - in the country illegally, looking to settle down and make money. The only difference is that they are known to authorities and more likely to be deported if caught. Until recently, if news reports are to be believed, most of those caught who did not have a criminal record were released on their own recognizance to appear for their hearing. A decent number failed to show.
Also - in the current debate, it is important to distinguish between economic migrants and refugee claimants. the latter are claiming to be in danger of life or limb if they are forced to return. If they have a plausible case, they are likely to appear for their hearing, which could result in their being granted temporary or permanent legal residency. Due to local government actions and lawlessness in some central American countries, this is where the majority of the current border crossers are coming from. The number of Mexicans looking to move illegally to the USA is way down.
The USA has the same problem as Canadians do with refugees from the USA. If a Guatemalan shows up at the border and claims refugee status, they can be turned back - “you are in Mexico/USA already, so USA/Canada does not need to take you, you are already in a safe country.” OTOH, if a Guatemalan or Salvadorean makes it into US or Canadian territory, they cannot be “sent back”, the last country they just came from has no reason to allow them back in once they left. The reverse applies - “now you are in another safe country, why should we allow you back into Mexico/USA”. So the incentive, absent agreements with the neighbour, is for a refugee to sneak into a country and then claim asylum.
The purpose of detention (as with separating children) is to make arriving in the country less enticing - no job, no money earned, no freedom, risk of being sent back much higher… Ignoring the comments from so many in detention that even prison in America is better that the risks they faced back home.
You can get a lot of information on the federal system from the “judicial business” tables from the US Courts website. (link here for 2017). Unless I’m misreading the “Pretrial Services” tables, it looks like ~72% of defendants were detained and never released. It looks like the Pretrial Services Officer recommended detention in ~68% of cases and the prosecutor recommended detention in ~72%.
And that of the 27.6% that were released, about 88% of those are released on an unsecured bond.
My understanding is that this is a hugely inconsistent with state level practices, where remanding defendants without bail is materially less common. I assume part of the discrepancy is the nature of federal crimes. I don’t see anything in the tables that answer whether or not a defendant was offered a secured bond but was unable to pay. But that is viewed as a pervasive problem at the state level.
For “minor crimes” meaning non-violent misdemeanors? I would say at least 90 are released within a couple of days, and 5 more within a couple of weeks.
The major problem I see which is really not addressed in any of the articles I read is the coercive nature of bail conditions. I see it all of the time. A person is charged with a serious misdemeanor or even a felony. He or she makes bail, but is put on “pre-trial bond supervision” and one of the conditions of supervision is drug testing.
Well, it is not really surprising that most people who commit crimes are addicted to drugs or alcohol. So, invariably they will fail drug screens, have their bond revoked and sent back to the county jail.
They can choose to remain in jail for months or accept the prosecutor’s “generous” plea agreement to plead guilty to the charge in exchange for time served. The person may be innocent, or at least have a good chance of disproving guilt beyond a reasonable doubt, but doesn’t want to sit in jail for months on that chance. They accept the plea, the state gets a win, and off to the next case.
I disagree with this pretrial bond supervision. An accused is presumed innocent. Why should he or she have to be confined to his home or drug tested or report to a probation officer simply to remain free pending trial?