A recent preliminary injunction issued by a Superior Court in California found that using a countywide financial bail schedule violates the U.S. and California Constitutions. It noted the overwhelming evidence documenting the harm caused by detention, including that “secured money bail regimes are associated with increased crime and increased FTAs [failure to appear] as compared with unsecured bail or release on non-financial conditions.”
Those familiar with the law (release is supposed to be the norm and detention the “carefully limited exception”) and the evidence (money as a condition of release does not improve court appearance or community safety) will not be surprised by this ruling.
In addition to his unequivocal statement that “secured money bail causes more crime than would be the case were the money bail schedules no longer enforced,” Superior Court Judge Lawrence P. Riff also asked why the Los Angeles County pretrial system was not already using constitutionally sound and effective practices.
While Judge Riff granted the parties a 60-day waiting period to negotiate alternative pretrial practices, he wrote, “These issues have been on the forefront of criminal justice in California and Los Angeles County for years and this case on file for six months. Dozens of other jurisdictions have such plans in place. What has prevented these parties from developing such plans and procedures by now and what will be different in 60 days?”
The question that all judges, prosecutors, defense lawyers, and others should ask is this: What is preventing our pretrial system from using legal and evidence-based practices?
Litigation to end wealth-based detention before trial is pending in Louisiana, North Carolina, Oklahoma, and elsewhere. Settlements in response to similar litigation are being implemented, monitored, and scrutinized in Detroit, Michigan; Harris County, Texas; and Shelby County, Tennessee.
As more courts recognize that financial release conditions do not support court appearance and community safety, jurisdictions will need to change their practices. But translating policy changes to county-level practices is challenging.
That’s why we encourage pretrial systems to start now.
We developed the Roadmap for Pretrial Advancement to help jurisdictions get started.
Pretrial systems are complex. They comprise a collection of agencies that work independently, each often lacking a clear understanding of how others in their system operate.
The unfortunate truth is that most systems are using practices that are many decades old. Practitioners often are not following the legal framework for pretrial release and detention decisions established in their state. They are frequently unaware of the research showing that most people succeed on pretrial release and that detention increases the likelihood that people will be arrested again in the future.
That’s why the path begins with collaboration and data to understand and explain the problem. Illustrating the need for improvements is a first, crucial step in advancing pretrial justice.
The Roadmap offers a range of policy and implementation practices. Most jurisdictions can identify something to advance pretrial justice, although few will have the capacity to implement every recommendation in the Roadmap.
But the critical step is to begin.
As the judge implied, we know what the law says, and we have the research. So what are we waiting for?
About APPR’s Roadmap to Pretrial Advancement
The Roadmap offers a comprehensive, two-part approach to improving pretrial policies and practices. The Policy Roadmap describes 11 policies and practices that apply to different parts of the pretrial system—“what” your system should be doing if striving toward true pretrial justice. The Implementation Roadmap includes four practices that apply to “how” to implement these policies and practices.
Learn more about APPR’s Roadmap to Pretrial Advancement and strategy-specific resources.