At the heart of the United States’ criminal justice system is the principle that someone accused of a crime is innocent until proven guilty. Nevertheless, 60 percent of those detained in Florida jails—35,000 people on any given day are awaiting trial, not convicted of a crime—at an average cost of more than $815 million per year to Florida taxpayers.
As it stands, current practices related to the pretrial phase of our criminal justice system do not fully promote public safety, fair and equitable treatment of defendants, or the effective use of community resources. It is instead a system based on a defendant’s financial resources, as opposed to their measured risk.
As Florida sets its sights on making significant and positive changes to our criminal justice system, it is imperative to examine pretrial decision making through a more rational, modern lens.
The point in the process where defendants are accused of a crime and are legally considered innocent until proven otherwise, is among the most important decision making places criminal defendants face. Yet this period (post-arrest and prior to trial, often termed “pretrial”) is handled arbitrarily, with money serving as a much too powerful factor in the decision to release or detain a defendant. Chance is seldom if ever a game to be played in matters of public safety, and yet it is in fact the scenario we engage when money—instead of public safety—drives these decisions.
The challenge is that often, having the money to pay a bail fee does not ensure a person accused of a crime is not a public safety threat or that he or she will show up for court. Conversely, not having the ability to pay one’s bail does not ensure that the accused is a public safety threat or won’t show up for court. This inequitable treatment of the criminally accused at this stage by itself would warrant serious examination, and yet there are additional concerns with existing policy. Even the shortest of stays in a county jail can have significant impacts on both individual and longer-term public safety outcomes. Imagine, for example, the consequences on employment, family security, and on a defendant’s children. Further, the inability of an individual to afford bail can and often does exert additional pressure to enter a guilty plea, without regard to innocence or guilt, when facing the prospect of a destabilizing jail stay.
Pretrial release is a constitutionally protected right for defendants, with many qualifiers in place to safeguard public safety. The presumption for most defendants is that they will be released pending resolution of their case. Florida law defines that the purpose of a bail determination is to ensure the appearance of the criminal defendant at subsequent proceedings and to protect the community against unreasonable danger from the criminal defendant. As such, when bail determinations/release decisions are made, the majority fall under three categories: