Two Steps Forward, One Step Back: A Cautionary Tale About Bail “Reform” in Georgia

It is now well known that our country’s widespread use of money to determine someone’s freedom after arrest — a practice commonly referred to as cash or money bail — is harmful, unnecessary, and against the core principles of our Constitution. Over the past several years, a massive wave of political and legal action has taken aim at addressing the tremendous suffering and bad public policy embodied in our cash bail systems. Just this summer, “ending cash bail” was one of the agreed upon policies in the platform released by Bernie Sanders and Joe Biden. Jails are among the most dangerous clusters of COVID-19 transmission, and cause further spread in surrounding communities. The work of diverting people from unnecessary incarceration is thus all the more urgent.

While stakeholders across the ideological spectrum seem to care about addressing the evils of wealth-based pretrial jailing, it remains to be seen whether any of those efforts are actually working. Sadly, our recent study in the Georgia Law Review suggests we have a long way to go even after claiming reform victory.

Alongside two law professors, two computer science students, and a cadre of amazing student and community volunteers, I studied whether bail reform has worked in a state that has heralded numerous “bail reforms” over the past few years. In 2018, Georgia passed legislation aimed at improving fairness in misdemeanor cases, which included requiring authorities setting bail to consider a person’s finances. Later that year, the 11th Circuit Court of Appeals issued a ruling in a class action lawsuit challenging Georgia jurisdictions’ use of money bail to incarcerate people who are unable to pay to secure their freedom. The court found “presumptively constitutional” a system in which all arrestees, including those too poor to post bail, were guaranteed release from jail within 48 hours of arrest and provided individualized hearings with the assistance of a lawyer.

Our study examined whether the constitutional principles outlined by the 11th Circuit as well as the updated Georgia law were actually being followed in practice. Examining a representative sample of 51 Georgia counties through court observations, review of court records, interviews, and surveys of court and jail staff, we assessed each county’s compliance with legal mandates required by bail reform.

What we found was disheartening: Not one of the counties studied was in full compliance with the law, as none of them practiced all four of the legal requirements we studied. Most counties only satisfied one or two of the requirements, and many failed on all four:

1. Evaluation of the individual’s ability to pay when setting bail (48.7 percent of counties studied were in compliance)
2. Holding of an individualized bail hearing that evaluates a person’s finances within 48 hours of their arrest (41.3 percent)
3. Guaranteed release within 48 hours of arrest of a misdemeanor (8.3 percent)
4. Availability of public defender when bail is set (11.9 percent)

Among the 18 counties for which we tracked jail-inmate registries from May to November 2019, 36.7 percent of those arrested on new misdemeanor charges only, with no other holds, spent three days or more days in jail. The average jail time was 8.7 days.

Although the results suggest that, on the whole, Georgia courts are not adhering closely to either state or federal law, a handful of counties appear to be headed in the right direction. Many judges, sheriffs, and court administrators are aware of recent legal developments and are making serious efforts to eliminate unnecessary detention. On the whole, however, even those promising jurisdictions need to either provide their post-arrest processes more quickly, and/or take the ability-to-pay inquiry one step further to assure release for those who have not been able to post bail by the time of a hearing.

Our findings should be a wake-up call to everyone who cares about fairness and positive change in our criminal legal system, both in Georgia and across the country.

My colleagues working on issues of racial and criminal justice in Georgia note the significance of our findings, observing firsthand the disconnect between the law and practice in the context of bail reform.

“The ACLU of Georgia regularly receives reports about incarcerated people accused of misdemeanors who are stuck in jail because they cannot afford their bonds,” said Kosha Tucker, staff attorney with the ACLU of Georgia. “Many of these reports come from incarcerated people who are under the jurisdiction of local municipal courts, and this is particularly concerning because indigent defendants in municipal courts often lack access to counsel who could argue for their release on nonmonetary conditions.”

Of course, our study wasn’t perfect. In most places, pretrial justice suffers from a lack of robust data collection, and court proceedings are rarely recorded. Studying this issue is even harder in states like Georgia where the courts and jails are locally run. (To boot, Georgia has 159 distinct counties, each with their own criminal legal system.)

Even so, this undertaking — the first of its kind to our knowledge — has huge implications for the work of advocacy groups, including the ACLU. After all, we lobby for changes in the legislature and use the courts to correct injustice every day. While these are important levers of change, no one’s work is done until those changes are realized in the very places they most counted to begin with: courtrooms and communities where poor people and people of color are being subjected to cruel and unfair incarceration and removed from their families all while presumed innocent, every day.

As a deadly pandemic rages through the country, and jails in particular are dangerous hotspots, it’s of critical importance that reforms are followed, not ignored (and certainly not walked back). If local officials merely followed the existing law, we would have fewer people in jails and would lessen the spread of the pandemic. Indeed, one of the counties studied for our report, Clayton County, which was not providing all the protections required by law, is now the subject of an ACLU lawsuit for its failure to protect incarcerated people from COVID-19.

As the election approaches, those who care about fair process in the criminal legal system should ask candidates for sheriff’s offices and local judicial positions for their stances on cash bail and pretrial incarceration. These positions carry a tremendous amount of power in ensuring laws are implemented and progress is maintained. (And Georgians interested in preserving a fair upcoming election can volunteer with the local ACLU as poll workers.)

Read the full study "Boots and Bail on the Ground: Assessing the Implementation of Misdemeanor Bail Reforms in Georgia" in the University of Georgia Law Review here.