American criminal law is based on the idea that everyone is innocent until proven guilty. A person who has been accused of a crime, but has not had a trial is innocent.
The bail system is effectively a ransom, holding legally innocent people in jail unless they can put up money. Holding people who cannot afford bail disrupts families and communities. It often costs those people their jobs and their housing. It makes it harder for people to put together their defense and coerces guilty pleas. It's expensive to jail people. On top of all this, it isn't good policy - a peson's ability to pay is not a predictor of whether they'll reoffend or skip court.
House Bill 2419 would require that people charged with some misdemeanors are released on their own recognizance, unless a judge gives a good reason why they should not. The law does not apply to misdeamnors including violence, use of a weapon, crimes where the victim is a child, major traffic offenses, and drug crimes. For those crimes and for felonies that aren't given this presumption, judges are guided to consider a variety of individual factors about a defendant and then apply the "least restrictive" pretrial conditions reasonably deemed to protect the public and ensure appearance at a trial. The bill suggests some of the conditions that could be placed on a person short of pretrial detention, such as electronic monitoring, requiring the defendant to maintain a job, or cash bail.
This ACLU opposes the use of cash bail or other financial requirements as a condition of pretrial release. Instead, the ACLU supports individualized assessments of defendants that make specific findings as to why that person is deemed a flight risk or a risk to a specific person or group of people. Based on those findings, the least restrictive, non-financial conditions should be applied. Furthermore, the ACLU believes pretrial reform also requires the courts to take a more active role in helping people overcome barriers to attending court dates, such as child care and transportation.
From this perspective HB 2419 is an imperfect pretrial reform bill, but still a step in the right direction. The presumption that defendants should be released on their own recognizance should be the default for all people. When a person is denied that - judicial findings should be specific, rebuttable and in writing; this applies both to the subset of misdemeanors and to all other charges. Finally, the bill should remove the option to require cash bail, and should ensure that all other conditions to not require a defendant to pay for their freedom.
We support this bill, but hope as it advances, the legislature will continue to improve it.
