The Civil Rights Implications of Cash Bail
At the Commission’s briefing, Lars Trautman, Resident Senior Fellow at the R Street Institute explained these trends show that: [T]here are literally thousands of individuals who are held prior to trial for no better reason than a financial inability to pay whatever money bail has been assessed on their case. What’s more, there are many more thousands who are released, but only after significant financial hardship to themselves or their family, particularly through the payment of non-refundable commercial bail fees. What evidence we have suggests that there are significant racial and ethnic disparities, both in the amount of money bail that is set in a case, as well as who ends up detained prior to trial. In this, we also see wealth-based disparities.
The process of how judges establish what bail conditions are appropriate, whether in the federal or state systems, raises many concerns, however. For example, R Street Senior Fellow, Lars Trautman testified that one of the problems with bail hearings is that they can be rushed and reckless. Studies have indicated that in some places, the typical bail hearing lasts only one to three minutes on average. That is hardly enough time to assess an individual’s risk of flight or danger to the community, let alone their financial ability to pay whatever money bail may be assessed on their case. I can personally attest that when I was a prosecutor, on numerous occasions, I had to stand up and quickly familiarize myself with the case and determine my bail recommendation in the minute or two it took a court clerk to formally read charges to a defendant. That’s a system that invites error and inconsistency, no matter how evenhanded or thoughtful its participants attempt to be.
For example, Rafael Mangual, Fellow and Deputy Director with the Manhattan Institute, posited that the federal government could provide “better funding [to the] criminal justice system, so that [jurisdictions] can afford more prosecutors, more judges, and more public defenders.”706 He asserted that this “is the most direct route to shortening pretrial detention periods, as well as to ensur[e] that truly speedy trials become the norm.”707 Similarly, Resident Senior Fellow at R Street Institute, Lars Trautman stated that the federal government can take an affirmative role in reforming pretrial and bail systems by expanding and/or creating additional grant programs that are available to local and state jurisdictions