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The jury box in the Utah County courthouse where proceedings are about to begin is full, but not with jurors. The seats are filled with handcuffed defendants dressed in brightly colored garb that could be mistaken for nurses’ scrubs if not printed with “Utah County Jail” in capital letters across their backs.
These are among 75 percent of individuals who haven’t posted bail and are being detained in local jails across the country awaiting their trials, according to the nonprofit Prison Policy Initiative. Their cases won’t be decided today — most are here for pretrial hearings.
As a group the defendants remain solemn, awaiting the judge’s appearance. One defendant waves to someone in the courtroom gallery and, upon getting their attention, blows a kiss.
When an individual is arrested and charged with a crime in the United States, it is generally understood that, in the eyes of the court, they are to be regarded as innocent until proven guilty. This is underscored by the rights stated in the U.S. Constitution which guarantee the accused “a speedy and public trial” and that citizens shall not “be deprived of life, liberty, or property, without due process of law.”
So why, then, are so many of the accused being held behind bars for the entire pretrial period? An increasing number of individuals and organizations are seeking an answer.
One such organization is the Pretrial Justice Institute, whose website states their core purpose “is to advance safe, fair and effective juvenile and adult pretrial justice practices and policies that honor and protect all people.”
One of the main points of their advocacy has been focused on ending mass incarceration through reforming the bail system in U.S. courts. Currently, in a majority of states, when individuals are arrested and charged with a crime, the only way for them to secure release from jail prior to their hearings is to post some form of bail.
A bail bond is a nonrefundable fee paid to a for-profit bail bondsman, who guarantees the accused will show up on their court dates or pay the full bail amount if they don’t. Oftentimes, a family member must also sign as a guarantor of the bond. In other cases, individuals may be required to post cash or money bail, a lump sum to be paid in full by the accused themselves in order to secure release.
In discussing the need for reforms of such a system, Pretrial Justice Institute CEO Cherise Fanno Burdeen described the criminal justice system as a maze that, once you get in, is hard to escape. The pretrial period between when someone is arrested and finally tried, she said, is the front door to the maze.
“To end mass incarceration, we need to pursue action to limit who goes through that door by reducing arrests, reducing detention, replacing money bail and raising equity by combating the racial biases in the criminal justice system,” Burdeen said in a statement to The Daily Universe.
Most advocates intend to see reforms to the bail system which would allow for a greater number of defendants to be released prior to their trial. This is due to the inequality they see in who can afford to post bail and other negative effects on the ultimate outcome of cases after a defendant is detained for a prolonged period.
In a 2013 study, researchers found that “defendants who are detained for the entire pretrial period are much more likely to be sentenced to jail and prison.” The same study also determined that detained individuals receive longer jail and prison sentences than defendants who didn’t spend the pretrial period in jail.
The idea of replacing the bail system does not sit well with everyone. Christie Ellis is the owner and operator of Breaking Bad Bail Bonds, one of Utah’s larger bail bond companies. She approaches her job, first and foremost, with compassion and encourages her employees to do the same. She is usually one of the first people her eventual clients speak to after they’re arrested, an often scary and disorienting experience.
The fruits of her efforts seem to be reflected in the high number of positive reviews her company has received online from those who have used their services.
Ellis sees going through the experience of having to post bail to secure release as a net positive for many of the clients she has worked with. Having to turn to a bondsman to post bail can prove to be a turning point in the lives of those who find themselves on the wrong side of the law, she said. Support groups tend to come out of the woodwork as family members offer accountability in securing a bond.
That being said, not everyone who finds themselves unable to afford bail has such a support group. Without being released prior to their trial, those individuals miss out on valuable opportunities to prepare for their case, according to Shima Baradaran Baughman, a University of Utah law professor who has performed comprehensive research on bail in the U.S. criminal justice system.
“Constitutional rights guarantee that most people should be released pretrial so that they can prepare their criminal case by meeting with counsel, finding witnesses and reviewing evidence,” Baughman said. “When someone is locked up before trial, they are deprived of this valuable opportunity and are at a severe disadvantage.”
While Baughman and Ellis may not agree on a definitive solution for bail reforms, both pointed out the undue burden unnecessarily jailing defendants has on the United States taxpayer. Baughman indicated that in some jurisdictions, unnecessary jail stays can cost taxpayers up to $50,000 per defendant, per year.
Some states have already moved away from money bail systems, as has the District of Columbia. Baughman said the district has successfully been operating a money-free bail system since the 1970s.
In Utah, Ellis sees a lack of consistency between courts in setting bail amounts as a major issue. She also said she spends most of her time ensuring her clients know when and where their court appearances are because the courts themselves do such a poor job of informing defendants.
Ellis said she feels it’s important for the general public to become aware of the issues surrounding bail reform in order for anything meaningful to happen.
“Until it’s their family or their neighbor or they’re the victim, they don’t care, but as soon as it’s a family member who’s held in jail that they can’t get out, then they really care,” she said.
