New ACLU Report: Bail Creates a Two-Tiered Justice System in Washington

Locked up for being poor.

The ACLU of Washington today released a position paper highly critical of the state’s bail system.

The report hits many of the same themes examined by Lael Henterly last month in our paper. As Henterly wrote, while state law compels the courts to only use bail in cases of serious flight risk, “judges are quick to assign bail, even in cases where defendants don’t have the means to pay $50, let alone $10,000, creating a two-tiered justice system.”

The ACLU report is titled “No Money, No Freedom,” and notes “the serious and persistent problems that occur when accused people are forced to await their trials behind bars.”

“Because people who are locked up are less able to assist their attorneys in preparing a defense, being in jail seriously harms their prospects in court and may ultimately prevent a trial from even occurring. The loss of income, possible loss of employment and housing, and stresses on one’s family that accompany incarceration have induced many defendants to accept a plea bargain to get out,” the ACLU says in a press release. (We’ll link to the report once it’s posted online).

That was certainly the case of Cedric Smith, featured in our story, whose bail was set at $10,000 for an assault charge. He lost his job and his apartment as he spent months in jail awaiting trial. However, he persisted and was eventually found not guilty.

The ACLU report suggests a litany of changes to the bail system. They include:

  • Decrease use of money bail. Detention or release should not be conditioned on an individual’s wealth or access to money.
  • Ensure all defendants have legal representation prior to the initial court hearing. Bail should not be determined without competent legal counsel providing the judge with sufficient information to make a fair decision on whether to release a person.
  • Create less restrictive alternatives to jailing people before trial.
  • Courts should develop pretrial programs that provide services at the beginning of a case and allow for more effective monitoring of people who are released and awaiting trial. Court appearance reminder call systems can reduce failure to appear rates and unnecessary warrants.
  • Collect pretrial court data. Courts should collect pretrial data to analyze performance metrics and to track racial and other disparities.

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