The leading arguments in favor of restricting bail and pretrial release are that those who are accused of crimes pose a danger to society and will fail to appear at their court date. Former Attorney General Holder, the highest ranking legal officer in the country, recently noted that non-violent defendants “could be released . . . and allowed to pursue or maintain employment, and participate in educational opportunities and their normal family lives—without risk of endangering their fellow citizens or fleeing from justice.” Yet two-thirds of the 500,000 un-sentenced individuals currently awaiting trial in jail are low risk, meaning they are identified as “posing no significant risk to themselves or the community with a likelihood of reappearance at subsequent court dates.” These “low risk” individuals, when forced to remain in jail due to their financial status, face very high risks to their socioeconomic status. The purpose of this post is to explore the socioeconomic consequences pretrial detainees are forced to endure due to their incarceration.
The Supreme Court has endorsed the idea that an arrest is an act that can “seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family, and friends.” It logically follows that that excessive, and even short term, pretrial detention can make these problems exponentially worse. Take the story of Kristopher, for example, who was detained in Colorado due to his inability to post bail: “I lost both of my jobs and the apartment I was living in, including everything I owned at the apartment. I had lived in this apartment for six months and was definitely getting back on my feet and everything I owned was put out on the street as part of the eviction. I didn’t even own a pair of shoes when I was released from the jail.” Or Jesse: “I had a job installing carpet for the past six years and an apartment I rented with my girlfriend. My bond was first $10,000, then the judge made it $5,000 but I still couldn’t post it. By the time I got to court to get my bond reduced, I was evicted from my apartment. My girlfriend also got evicted because I made more money and she couldn’t afford the rent by herself.” Stories such as this are all too common.
As noted in a previous post, a strong correlation has been found between pretrial detention and the likelihood of recidivism, both in the time between release and trial and post conviction. While that study did not address the causes of the additional criminal activity, the loss of employment and ties to both the family and community, which often occur when someone is incarcerated, are likely significant factors contributing to new criminal activity. For instance, studies have shown that employment has a significant impact on the recidivism of those returning from incarceration. Individuals who have employment after release are far less likely to recidivate. Granted, this study looked at inmates who were already sentenced. However, it makes no difference whether the individual was sentenced or a pretrial detainee. Incarceration is incarceration. People like Kristopher or Jesse who lose their source of income due to incarceration are far more likely to resort to crime in order to provide for themselves and their family. This is a major aspect of the criminogenic effect of pretrial detention at work. The impact of loss of employment and income due to pretrial detention cannot be overstated. Further, it is important to remember that the greatest harm is inflicted upon those who are the most vulnerable to the criminal justice system, those who are too impoverished to afford bail. Those who are too impoverished to afford bail are the same people who are likely working low-level jobs and are dispensable to their employers.
Even if the detention does not lead to a conviction and the individual is acquitted, or the case is thrown out, there remains a high likelihood that detainees will lose their employment. As Supreme Court Justice Brennan noted in a scathing dissent in Paul v. Davis, “[M]any employers will treat an arrest the same as a conviction and deny the individual employment or other opportunities on the basis of a fact that has no probative value with respect to actual criminal culpability.” Currently, the average length of stay in Santa Clara County Jails is 154 days for un-sentenced felonies and 33 days for un-sentenced misdemeanors. The odds of an employer holding open a position for 154 days, or even 33 days, are likely very small.
Furthermore, even if someone learns at arraignment, which is the hearing where bail amounts are decided, that they are entitled to own recognizance release or decides to post bail it may be too late. The Supreme Court of the United States in County of Riverside v. McLaughlin held that probable cause determinations, i.e. arraignments, must take place “as soon as is reasonably feasible, but in no event later than forty-eight hours after arrest.” Despite this binding legal precedent, many jurisdictions, including Santa Clara County, allow for a seventy-two hour window. To be fair, some federal courts have upheld the use of a seventy-two hour arraignment notwithstanding the Supreme Court’s mandate. However, Santa Clara County does not include weekends or holidays in the forty-eight hour calculation, even though the Supreme Court expressly stated that weekends must be included in the forty-eight hour calculation. This means that if you are arrested in Santa Clara County on Friday, you will likely not have an arraignment until Wednesday, something that has come to be known as “Wicked Wednesday” in our community. Therefore, an individual may be forced to spend up to six days in jail before they can see a judge for a proper bail determination. In other words, they are likely to miss four days of work before having the opportunity to go before a judge. Missing one day of work, let along four, is something employers may not look kindly upon. Even missing one day of work may be a valid cause of termination.
In the off chance that a pretrial detainee maintains employment despite being locked away for months, or even years, the resulting loss of income from not being able work can be detrimental. Over 62 percent of Americans have no emergency savings and are living paycheck to paycheck. Suppose you are one of these Americans. How would you afford to pay rent, food for your family, insurance, child support, or any of the countless financial responsibilities that we all have? These individuals are only incarcerated because they couldn’t afford bail, sometimes even a modest amount. If these individuals could not afford bail, how are they going to have the financial means to take care of themselves and their families while incarcerated?
So how does this apply to residents in Santa Clara County who encounter the criminal justice system? The average bail in Santa Clara County is $15,000. That means the hundreds of pretrial detainees in Santa Clara County jails at any given time could not afford, or refused to pay, the $1,500 bond which would allow for their release. Now consider that the average rent in Santa Clara County is over $2,000. If these individuals could not afford to pay the $1,500 bond to be released prior to trial, then it logically follows that, even if they are incarcerated for only one month, they could not afford to pay rent. The loss of a single month’s income could make an already struggling family homeless. For those who rely on state benefits for their livelihood, or supplemental income, the situation is no different. For instance, after spending one month in jail, which is less than the average pretrial detention in Santa Clara County, supplement security income (SSI) payments will cease. Further, an individual who relies on food stamps to feed their family cannot receive food stamps while they are in jail. Losing the ability to put food on the table is something that is likely to affect the detainee’s innocent family members more than anyone.
The arbitrary use of pretrial detention has a far-reaching effect. Behind many detained individuals there is a family who is suffering tremendously due to the loss of income, shelter, food, and stability. The criminal justice system needs to open its eyes to the horrific effect that the money bail system has, not just on the individuals being detained, but on their families and society as a whole. Simply being accused of a crime, in a country where citizens are presumed innocent until proven guilty, shouldn’t have the potential to ruin one’s life.