As President Lyndon B. Johnson pushed Congress to pass the federal Bail Reform Act in 1966, he hoped the new law would become an “enlightened model” for states and communities that had not reformed their bail systems.
“Yet all too often we imprison men for weeks, months, and even years – before we give them their day in court – solely because they cannot afford bail,” Johnson told Congress.
The law required federal judges to weigh a person’s community ties and criminal record against the risks of pretrial release.
Before signing the bill, Johnson heralded the legislation, saying it put the nation “at the threshold of a new era” in its criminal justice system.
But 50 years later, few states have crossed that threshold.
As Reveal from The Center for Investigative Reporting, in collaboration with the Houston Chronicle and New Mexico In Depth recently reported, the use of cash bail is still widely practiced, often with devastating consequences for people who are too poor to pay for their freedom.
A handful of states have abolished the use of commercial bail, which involves defendants turning to the multimillion-dollar bail bond industry – or curtailed cash bail. More places are considering reforms. Among them is New Mexico, where voters this election season now appear to support an effort to amend the state Constitution.
A new poll, released just as Reveal’s episode was going to air, found that 78 percent of likely voters in New Mexico supported the amendment. The referendum, which was spearheaded by New Mexico Supreme Court Chief Justice Charles W. Daniels, would allow judges to deny bail to defendants deemed a risk to public safety but also prohibit keeping people locked up pretrial because they cannot afford to pay.
As states have been slow to reform their bail systems, a raft of recent lawsuits has sought to spur change in cities big and small.
Just this week, San Francisco City Attorney Dennis Herrera said he would not defend the city against a lawsuit filed in U.S. District Court challenging the city’s use of bail before arraignment, calling the system unconstitutional.
The challenge was brought by the nonprofit advocacy organization Equal Justice Under Law, which has filed about a dozen lawsuits around the country. Another nonprofit, ArchCity Defenders, this week filed similar back-to-back class-action lawsuits in U.S. District Court in St. Louis, alleging that local towns and cities are effectively running debtors’ prisons that target black communities and poor people who are jailed because they can’t pay bail or fees.
“This isn’t about public safety,” Thomas Harvey, the group’s executive director, said. “This is the criminalization of poverty and black life in St. Louis and around the country.”
In July, ArchCity Defenders won a $4.7 million settlement on behalf of roughly 2,000 mostly poor, black plaintiffs who said they were locked up in the city of Jennings because of unpaid court costs. The group has filed 18 suits in U.S. District Court targeting 81 municipalities that have their own courts, Harvey said.
On Tuesday, ArchCity Defenders sued the town of Maplewood, Missouri, west of St. Louis, alleging a pay-to-play practice by issuing “warrant recall bonds” that range typically from $300 to $500 that cause people – disproportionately poor and black – who cannot afford to make a court payment or appearance to sit in jail for 48 hours. The practice effectively bars residents access to court, the plaintiffs allege.
On Monday, the legal advocates sued Florissant, a predominantly white city a few miles north of Ferguson, Missouri. The class-action suit accuses the city of operating a debtors’ prison that unfairly and disproportionately targets black drivers. In 2014, more than 70 percent of vehicle stops involved a black motorist, although only about 27 percent of the city’s population is black.
Between 2011 and 2015, the city generated, on average, $2.65 million to $2.9 million a year through its municipal court, or roughly 12 percent of the city’s net revenue, according to the lawsuit.
Meredith Walker, 47, is one of five plaintiffs in the case. She has been jailed at least 10 times in the past five years for failing to pay traffic tickets and other minor municipal violations, the suit alleges. Walker has paid over $15,000 in fees, court costs and bond forfeitures in the St. Louis area, having been transferred from one municipal jail to the next to pay bonds for money owed before authorities would release her.
Florissant’s former prosecutor Ronald Brockmeyer was, until 2015, also the judge in Ferguson, whose exploitative court practices were scrutinized by the Justice Department in a 2015 report on Ferguson.
Harvey said reform advocates had hoped that the Justice Department’s scrutiny would have led to change but quickly realized it wouldn’t come without a fight.
“They’re not going to change voluntarily,” he said. “It’s going to be an order by federal court that’s going to produce real change.”