Bail Reform and Ankle Monitors

Calls for bail reform have been increasing and getting louder over the past few years – the system is broken, and it needs to be fixed. Now.

The current system in most jurisdictions, where people accused of crimes are often forced to remain in jail unless they can afford to pay a cash bond or to pay a bondsman’s fees, enriches bail bondsmen and insurance companies, often at the expense of America’s poorest citizens.

It punishes people solely because they are poor while rewarding others solely because they are wealthy or have access to resources. It inflates the jail population – many of whom are innocent. It also results in many defendants pleading guilty so they can get out of jail even though they are innocent of their charges.

Unfortunately, some jurisdictions that are implementing bail reform are also increasing the number of pre-trial defendants who are required to wear electronic ankle monitors – a service that they are required to pay a company for and, if they cannot pay, they are left in jail or returned to jail.

Bail reform is meaningless if the old system is exchanged for a new system that creates the same problems. We need bail reform now. If courts are going to order ankle monitors in lieu of bond, however, the state needs to pay for the monitors.

Why We Need Bail Reform Now

When a person is arrested and charged with a crime, that does not mean they are guilty of the crime. Believe it or not, a large percentage of people who are arrested are innocent of the accusations, and many of those cases are dismissed before they get to trial.

Pre-trial incarceration and bail are not meant to punish defendants – their punishment, if any, will come after they have been found guilty of the crime. Pre-trial incarceration is only appropriate when the defendant is a legitimate danger to their community or when the court finds that they pose an unacceptable flight risk.

So, what is wrong with the current bail-bond system used across the country?

Poor Defendants are Punished Because They are Poor

In practice, we have created a bail-bond system that encourages “wealth-based incarceration.” If you can afford bail, you go home. If you can’t afford bail, you live in a cage until your case is called for trial.

It disproportionately impacts both poor defendants and people of color:

Poorer Americans and people of color often can’t afford to come up with money for bail, leaving them stuck in jail awaiting trial, sometimes for months or years. Meanwhile, wealthy people accused of the same crime can buy their freedom and return home.

The system results in unequal treatment based on a defendant’s wealth, with no rational justification. It causes undue and unnecessary hardship for many poorer defendants and their families, it prevents poorer defendants from working to support their families, and it takes mothers and fathers away from their children, needlessly causing irreversible damage.

If hurting poor people solely because they are poor is not enough, other injustices result from our bail-bond system every day.

Innocent Defendants are Forced to Plead Guilty

Unless you are someone who thinks every person charged with a crime is guilty (or, as a prosecutor once said to me, “they’re guilty of something…”), you will probably agree that innocent people pleading guilty so they can get out of jail is a bad thing.

Defendants face an impossible choice: sit in jail as the case moves through the system; pay a nonrefundable fee to a for-profit bail bonds company; or plead guilty and give up the right to defend themselves at trial. For poorer families, paying this fee can be a significant hardship. They won’t ever get the money back regardless of the outcome of the case – even if the arrest was a case of mistaken identity and no charges were ever filed.

And yet this is happening on a regular basis. For some prosecutors, it’s a useful tool to close cases and get convictions (hey, they’re guilty of something, right?). But, for everyone else, this should be a clear injustice that needs to be corrected. Now.

Jail Populations are Still Increasing

In a country with the highest incarceration rate in the world, you’d think we would be scrambling to stop putting our citizens in jail. Yet, it’s like America is addicted to locking people up, even before they’ve been convicted of a crime…

This bail system has increased the jail population and made America’s incarceration problem worse. According to a report by the Vera Institute for Justice, the number of annual jail admissions doubled in the past three decades to 12 million, and the average length of stay increased from 14 to 23 days.

Bail reform is a good first step in America’s recovery from its incarceration addiction.

Who is Fighting Bail Reform?

Who doesn’t want bail reform?

Bail bond companies, for one. Understandably, bondsmen who have built a business and who support their families by taking money from incarcerated pre-trial defendants do not want bail reform. Neither do the insurance companies who back the bondsmen.

I am sympathetic to the potential loss of jobs for thousands of bondsmen and their employees. But, do we continue to punish poor people and force them to live in cages so bondsmen can continue to make money?

Why an Increase in Ankle Monitors Does Not Solve the Problem

Just as bondsmen and insurance companies lobby the legislatures to ensure that their business is protected, private prison corporations and electronic monitoring companies are ever-present at state and federal legislatures. Their lobbying efforts (and campaign donations) result in ever-increasing use of electronic monitoring and other aspects of the for-profit corrections market:

Although no current national tally is available, data from several cities — Austin, Texas; Indianapolis; Chicago; and San Francisco — show that this number continues to rise. Last December, the First Step Act, which includes provisions for home detention, was signed into law by President Donald Trump with support from the private prison giants GEO Group and CoreCivic. These corporations dominate the so-called community-corrections market — services such as day-reporting and electronic monitoring — that represents one of the fastest-growing revenue sectors of their industry.

These companies lose if courts do not order electronic monitoring for pre-trial defendants. What’s the problem?

If defendants are required to pay a company to install an ankle monitor (usually requiring several hundred dollars just to put the monitor on) and then pay weekly or monthly fees for the monitoring service, they are no better off than they would have been if they could not afford to pay bond.

When they cannot pay for the ankle monitor, they stay in jail. If they miss payments after release, they are sent back to jail. They are still being punished because they are poor, they are still being forced to plead guilty in some cases, and they are still being unnecessarily separated from their work and families.

Who Should Pay for Ankle Monitors?

What’s the solution?

What if we passed legislation reforming the bail-bond system. Abolishing the bond system? What if we presumed that defendants will return to court (believe it or not, almost all do)? What if we released every person pre-trial unless the court determines that they are a threat to the community – when there is a real possibility that a person is going to continue committing violent crimes.

What if we made electronic monitoring a condition of a defendant’s release, not as a matter of course, but only when it is necessary because the defendant is a flight risk or there is a concern about contact with the alleged victim?

What if the government paid for monitoring when it was required? That would certainly cut back on the number of case where unnecessary monitoring is ordered, and it would also solve the problem of forced incarceration solely because someone cannot pay the monitoring company.

By far the most decisive factor promoting the expansion of monitors is the financial one. The United States government pays for monitors for some of those in the federal criminal justice system and for tens of thousands of immigrants supervised by Immigration and Customs Enforcement. But states and cities, which incur around 90% of the expenditures for jails and prisons, are increasingly passing the financial burden of the devices onto those who wear them.

Why not make guilty defendants pay for the monitoring service after they have been found guilty? If you arrest someone and it does not result in a conviction, shouldn’t the government be paying the expenses associated with their mistake, anyway?

What if we passed bail reform, taking into consideration only questions of what is just, fair, and right while ignoring the special interests and corporations who are only trying to increase their profits?

Criminal Defense Lawyer in Myrtle Beach, Columbia, and Lexington, SC

Lacey Thompson is a SC criminal defense lawyer who accepts cases in the Myrtle Beach, Lexington, and Columbia, SC areas.

If you have been charged with a crime or think that you are under investigation, call the Thompson Defense Firm now at 843-444-6122 or send us an email to set up a free consultation.

bail reform and electronic monitoring

One Response to “Bail Reform and Ankle Monitors

  • SCDC is a private FOR profit prison that is the reason for mass incarcerations. S.C. targets the indigent, knowing without money to hire lawyers, no rebuttal is a sure thing

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