Legalese — Bail Reform

There is a movement across the country as well as in Georgia regarding misdemeanor bail reform.  The Judicial Council of Georgia recently put out a report from its Ad Hoc committee on the subject.

A little history on bail:

O.C.G.A. 17-6-1(b)(c) gives defendants a statutory right to an initial bond in all misdemeanor cases.  What that means as a practical matter, however, is up to interpretation.

Historically, we have used money as a bond.  A bond, sometimes called bail, just to be clear, is a “[m]onetary amount for or condition of pretrial release from custody, normally set by a judge at the initial appearance.  The purpose of bail is to ensure the return of the accused at subsequent proceedings.  If the accused is unable to make bail, or otherwise unable to be released on his or her recognizance, he or she is detained in custody.  The Eight Amendment (U.S. Const.) provides that excessive bail shall not be required.”[1]

So what is ‘excessive bail’?  That’s another mushy term that is hard to define.  There have been a lot of federal lawsuits regarding this issue in recent years, and the result is a good hard look at the way we look at bail.  Recently, the federal courts made it clear that the State, before incarcerating someone without bail (or with a bail they cannot afford) needs to show a ‘link between financial conditions of release and appearance at trial or law-abiding behavior before trial.’  This means that the judge or the court can’t set a monetary bond unless there is some correlation that can be shown between the person accused showing up in court again or committing another crime.

In Georgia, Senate Bill 407, passed in 2018, said that the courts should have an ‘ability to pay’ hearing as soon as possible.  This is because monetary bonds disproportionately affect poor people.  If you have a middle class income, and have to pay a $1,000.00 bond to get out of jail, odds are good your friends and family can come up with it (or the percentage needed to pay a bail bondsman) within hours of your arrest and you can go home.  If you make minimum wage, which is about $1,270.00 per month before taxes, odds are good you can’t come up with a sum that large that quickly.  So a person of means gets out of jail a whole lot quicker than a person who doesn’t have extra money.  On top of that, a person who makes a minimal income is more likely to be fired for missing a few days of work, compounding the problem.  Therefore, in order to make sure that poor people don’t get locked up more than rich people simply for being poor, you have to set bond on a sliding scale to ensure that the system is as fair as it can be.  Besides – bonds are not all about money.  There can be certain conditions of release aside from (or in addition to) paying money, such as staying away from certain people or places, or refraining from illegal drugs or alcohol.

When you are dealing with misdemeanors, you are dealing with people accused of crimes that the legislature, in its infinite wisdom, has decided are not as serious as felonies.  While we do and should take offenses like shoplifting and disorderly conduct seriously, they do not disrupt the order of society as much as crimes like burglary and robbery and rape.  Bearing in mind that before a plea or conviction every defendant has the constitutional right to being presumed innocent, do we as taxpayers really want to be paying to incarcerate someone who we have to presume is innocent of stealing $25.00 worth of food from a grocery store?

Jail serves its purpose.  It protects the community at large from individuals who may do them harm.  It serves as a deterrent for some kind of behavior.  It punishes people for engaging in behavior deemed unacceptable.  It ensures that slippery people will stay put when we need to know where they were.  No one is suggesting that we do away with incarceration, even for misdemeanors.  Just that judges use it, well, judiciously, and make sure that the justice system is fair and just towards all people, regardless of their income.

[1] Black’s Law Dictionary, 6th Ed. (1991).


Nothing in this article should be construed as legal advice.  It is being offered for informational purposes only.

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