A person arrested and charged with a crime is usually brought before a magistrate, without legal representation in most cases, who sets the terms of his or her bail. Oftentimes, the bail hearing is conducted by video conference and lasts less than a minute.
If the accused individual can afford to pay bail, which usually must be paid in cash, he or she is released until his or her next court date. If the person cannot make bail, he or she must remain imprisoned—although presumed innocent—until the date of trial, which could be weeks or months.
Individuals detailed pre-trial for low-level crimes and unable to pay bail face some potentially life-altering decisions. They can remain in jail until trial, where they will have the possibility of proving their innocence, or they could take a plea deal, even if they are innocent, which would in many cases allow them to go free.
“It can be very hard to turn that down,” says Paul Heaton, academic director of the Quattrone Center for the Fair Administration of Justice at Penn Law School, “even if you are, in fact, innocent and feel like you would be able to prove yourself innocent in the court of law.” Heaton says defendants pleading guilty to less serious crimes they didn’t commit may be a significant underrecognized source of wrongful convictions in the U.S. criminal justice system.
Recent research from the Quattrone Center reports that defendants unable to make bail are more likely to be convicted and less likely to receive favorable plea terms than similarly situated defendants who make bail, and go on to commit more crimes after their release. These differences in outcomes result from the bail process itself, and are not simply attributable to differences in the pools of defendants who are and who are not released.
One study, conducted by Heaton and Quattrone Center fellows Sandra Mayson and Megan Stevenson and forthcoming in the Stanford Law Review, investigated the effects of misdemeanor pretrial detention in Harris County, Texas, the third-largest county in the United States, which houses Houston, the fourth-largest city in the country. The researchers found that misdemeanor defendants in Harris County who were unable to make bail were 25 percent more likely to plead guilty, 43 percent more likely to be sentenced to prison, and received sentences more than two times longer than similar released defendants.
Heaton says some defendants in Harris County unable to pay bail likely plead guilty simply because their offenses would have resulted in a month in jail or less if they were found guilty, less than or equal to time already served.
“At some point, after you’ve been sitting there for a while, you haven’t been judged guilty but you’ve already served out what would be a full sentence if you were convicted,” he says. “At that point, once you’ve essentially pre-served the penalty, why prolong your detention by refusing the plea?”
In a second study, Stevenson analyzed pre-trial detention in Philadelphia for all criminal cases that had a bail hearing between Sept. 13, 2006, and Feb. 18, 2013. She found that felony and misdemeanor defendants unable to make bail were 13 percent more likely to be convicted and received sentences five months longer than equivalent defendants who were not detained pre-trial.
“I found that African Americans and people from low-income zip codes are more likely to be detained than wealthier white defendants with similar case and criminal history profiles,” Stevenson says. “This is important in and of itself because pre-trial detention and the loss of freedom that that entails can be very disruptive to a person’s life, but it also has ripple effects on your likelihood of pleading guilty, of being convicted, and so forth.”
Defendants who plead guilty to a crime they did not commit do so for the short-term gain of freedom, but Stevenson says they often overlook the long-term implications a conviction can have for immigration, child custody, student loans, housing eligibility, future employment prospects, and access to various public services.
In Harris County, Heaton says bail is almost always set between $500 and $5,000. For persons with a $500 bail, which means they must only post 10 percent or $50, a third or more were unable to come up with $50 and were detained. In Philadelphia, Stevenson says the percentage was even higher, around 40 percent.
“As a practical matter, what our research shows is that when it’s a cash-based system, your ability to go free is a function of how much money you can scrape together,” Heaton says. “That poor people are going to be more likely to be detained than wealthier people.”
Alternatives to a cash-based bail system include using risk assessment to identify defendants who pose the greatest risk of fleeing or committing another crime, releasing non-violent defendants on their own recognizance, requiring an individual to check in with a pre-trial services officer regularly, or using GPS or other forms of electronic monitoring.
“My guess is that if we’re willing to release you if you pay $50, we probably don’t actually think you’re much of a risk to society,” Heaton says.