And Justice for Some

Can’t post bail? Jail before trial increases odds of conviction

Sheriff's deputies inspect a cellblock at the Los Angeles County Men's Central Jail. Michael Garcia was transferred there from juvenile hall after he turned 18 and did not receive special education services for 19 months.

On paper, bail is pretty simple. You are charged with a crime, and the court asks you for an amount of money as bond, and then returns it when you show up for the hearing. If you have the money, you can go home and prepare an adequate defense. But what if you can’t make bail?

new study by the National Bureau of Economic Research, which analyzed over 420,000 cases in Philadelphia and Miami-Dade counties, found that being incarcerated before trial significantly increases the likelihood of being convicted.

The researchers concluded that pretrial detention makes defendants more likely to plead guilty by 27.5 percent and more likely to be found guilty by a jury by 27.3 percent.

Rodney Roberts was one of these detained defendants. Before he agreed to plead guilty to a crime he did not commit, he had already spent several weeks locked-up in the Essex County jail in New Jersey.

Roberts, then a 29-year-old salesman and father from Newark, had been arrested for a parole violation and subsequently charged with aggravated sexual assault. The court had set bail at $50,000, and he was unable to pay.

Roberts had been convicted of a felony in the same court 10 years earlier and knew the odds would be stacked against him if he pushed for a trial. When his public defender told him that pleading guilty to the downgraded charge of kidnapping was the best option for him, Roberts felt trapped by a system and accepted.

A 2013 analysis conducted in the jails of New Jersey – where Roberts spent 18 years wrongly incarcerated following his guilty plea – found that 38.5 percent of the total population was “held in custody solely due to their inability to meet the terms of bail.” Like Roberts, many of them chose to forfeit their right to a jury trial after being unable to post bail.

The discriminatory nature of the bail system is not breaking news. As early as 1961, New York City Correction Commissioner Anna Cross said that “remaining in jail because you can’t get bail is really being punished before you’re even found guilty.” Earlier this week, two other studies highlighted other issues, including finding that those detained before their trial were more likely to commit crimes on their release.

What is remarkable is the proportions it has taken over the past three decades.

“Each year, the United States imprisons more than half a million individuals who have never been convicted of a crime, largely because they are unable to post bail” – 20 percent of the total incarcerated population, the researchers wrote.

Pretrial detention also has a long-term impact on defendants’ employment status and income, with substantial differences in earnings of released and detained defendants persisting three to four years post-bail, the study found.

“As public defenders in one of the most under-resourced and over-policed communities in the United States, we see first-hand the devastating consequences of pre-trial detention,” Robin Steinberg, founder and executive director of The Bronx Defenders, wrote in an email.

“People can end up losing their livelihoods, their homes, and even their children, when forced to wait in jail for their day in court, simply because they cannot afford cash bail. Most come under tremendous pressure to take a plea bargain – regardless of guilt, innocence or the long term collateral consequences of getting a criminal conviction.”

Antoine Goldet can be reached at antoinegoldet@gmail.com. Follow him on Twitter: @antoinegoldet.

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