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Jailed without conviction: Behind bars for lack of money

About 10 million people are jailed each year for crimes large and small. Most – two-thirds of the 750,000 in jail on any given day – stay long periods without conviction at great cost to the public and to themselves because they can't afford bail.

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The proportion of defendants released without bail before trial varies wildly between jurisdictions. Harris County, in the Houston area, releases only about 5 percent of defendants without bail. But across the state in the capital, Austin, judges typically release more than 60 percent of defendants without requiring them to post bail. Even within Kentucky, which established a statewide pretrial services agency more than 30 years ago, county release rates range from 20 to 97 percent.

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Thanks to its longstanding pretrial services program, Washington, D.C., has one of the highest rates of pretrial release – 85 percent. That's a point of pride for Mr. Morrison of the District of Columbia Superior Court: "There is nobody in our jail tonight simply because they cannot pay their money bail."

Supervision at the 'grandmother level'

Bail bondsmen argue that they are the best time-tested way to ensure a defendant's return to court. Dennis Bartlett, the head of their industry association, the American Bail Coalition, says bail was the first-known risk-assessment tool and paraphrases the Old Testament book of Proverbs: "He who goes bail for a stranger will rue it."

The bail-bond industry – which dwarfs the pretrial community in terms of employees and reach – has historically taken on the risk of helping people receive their constitutional right to release, Mr. Bartlett says. Without any cost to taxpayers, bail bondsmen arrange for the release of nearly 4 million people out of the nearly 13 million arrests each year, he says. And, he adds, nearly everyone – 97 to 98 percent – returns to court to face charges. If the return rate didn't stay that high, bail bondsmen couldn't stay in business, he notes.

Bartlett says that he believes that pretrial services have a place in the justice system for helping those who are mentally ill or indigent.

But to limit services to that subset of inmates would still leave too many detained for too long, argues Mr. Murray, of PJI, which was founded by the US Department of Justice in 1976. Murray acknowledges that many commercial bondsmen have ties to families and a long history in most cities and their courthouses. "We have relied on a cash-based system for years," Murray says. "Practitioners have an underlying faith and belief that it works, and works effectively."

Still, Murray contends that the current bail system should be reformed. His perspective wins over officials, he says, because it's not "profit driven" and because his programs use refined, research-based tools for assessing risk rather than what he views as a more crude instrument, cash for freedom.

But bail bondsmen who have done this work for years bristle at the term "for-profit bail," often used by those who oppose the current system. "We're working hard every day," says New Orleans bail bondsman Blair Boutte, describing how he answers his phone 24 hours a day and how his three brothers track down anyone who doesn't show for court. "That's what a bail bondsman is supposed to do," he says, contrasting his work with that of pretrial services programs, which rely upon local law enforcement to find fugitives, he says.

Bartlett says that, in place of court-prescribed ankle bracelets or telephone monitors, his industry is able to maintain a "social control" over defendants from the very moment a family member posts bail for them, he says.

And when pretrial services programs add supervisory elements – typically calls and drug tests of pretrial defendants – Bartlett wonders whether that infringes on the rights of defendants who should be presumed innocent.

He says that his bail agents rely upon their community ties to fulfill the defendant's only true obligation: to appear in court at a certain time. To make that happen, he quips, "Supervision is done at the grandmother level."

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