When Bail Is Set, the Rich Walk and the Poor Go to Jail

Locked up for being poor.

Cedric Smith learned that a warrant for his arrest had been issued when he was turned down for an apartment.

The warrant connected back to a pending low-level assault charge stemming from a complaint made after a drunk woman tried to barge into his apartment but was blocked by the door, and he was confident the case would be dropped as soon as he explained the circumstances. Smith took a day off work at K2 Sports and headed to Seattle Municipal Court to resolve the warrant. He expected he’d be given another court date—after all, he’d shown up to take care of this on his own free will.

The judge set Smith’s bail at $10,000; he went from the courtroom to the ninth floor of the King County Detention Center to await his next court date. Smith, who was employed and had some money saved, thought he’d be able to put up $1,000 and bond out. But the bail-bond agency said he lacked the collateral to secure his release. After 10 days the court offered Smith time served in exchange for a guilty plea, but he refused. He sat in jail and waited until, 41 days later, his case was dismissed.

When Smith went into court at the beginning of the ordeal, his life was as stable as it had ever been. He had a full-time job, a stable place to live, and the means to support himself. After his release, he found himself back on food stamps and struggling just to make it to the next day.

Smith isn’t the only low-level defendant whose life has been turned upside down because he was accused of a crime. A 2015 study by the Seattle Municipal Court’s Research, Planning and Evaluation Group found that in 2014, 31 percent of in-custody defendants charged with misdemeanors in Seattle Municipal Court—the busiest court in Washington—ended up waiting for their next court date in jail because they couldn’t come up with the cash to secure the freedom they’re supposedly entitled to until found guilty. While there, they lose jobs, homes, children, and dignity.

Every Monday morning Judge Willie Gregory oversees the new-arrest court calendar in the municipal courtroom inside the King County jail. On Monday, August 8, the list of new arrests is so long that one court personnel quips that it’s a good day for the bail-bond agencies.

The defendants file in one by one, clad in red jail scrubs, and look up at Justice Gregory as he decides their future. The city attorney serving as prosecutor requests that bail be set in most cases; often in staggering amounts. A woman stands beside her public defender as the prosecutor rattles off the reasons he doesn’t think she’ll show up to court: She’s missed court several times in the past two years, he says, and has a poor history of complying with the conditions of release set by the court. The woman’s public defender counters that things are different now: Her client just started methadone treatment and signed up for social services. Gregory, who declined to comment for this article, weighs the arguments and sets bail at $25,000. It’s a sum the defendant couldn’t possibly raise; she’ll be sleeping in jail that night.

This isn’t how bail is supposed to work in Washington. State law mandates a presumption of release in all but capital cases. All pretrial defendants should be released on their promise to show up for court unless a judge determines a person is likely to fail to appear in court, commit a violent crime, tamper with witnesses, or obstruct justice. When conditions are imposed to guarantee appearance at future court dates, the law says they should be the least restrictive conditions necessary. Electronic home monitoring, day reporting, and community court are all far less restrictive than incarceration, but only 11 percent of those arraigned in custody at Seattle Municipal Court are assigned to specialty courts or less-restrictive supervision. Instead, 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 system is flawed when people with money can afford to bail out who might actually be a danger to the community and poor people can’t afford to get out on a simple misdemeanor trespass charge,” says Twyla Carter of the King County Department of Public Defense.

A study commissioned by the Laura and John Arnold Foundation in 2013 found that more than 60 percent of jail inmates nationwide are being held as their cases move through the court system. Pretrial experts Dr. Marie VanNostrand and Dr. Christopher Lowenkamp estimate that this costs more than $9 billion each year. The King County Department of Adult and Juvenile Detention places the nightly rate at the King County Jail at $147 per head; in a year the City of Seattle spends between $4.7 million and $5.4 million holding misdemeanor defendants from arraignment to sentencing.

Anita Khandelwal, the Department of Public Defense’s policy director, says a better system would involve more robust pretrial supervision services, similar to what they’ve had for decades in the nation’s capital.

The District of Columbia passed the Bail Reform Act in 1992, all but eliminating cash bail, and began releasing about 85 percent of its pretrial defendants. They created a Pretrial Services Agency and a sophisticated system to identify the small percentage of defendants who truly pose a danger to the community. This agency reports that in 2015, 90 percent of released defendants made every one of their court dates. The federal courts use an equally transparent system, holding truly dangerous inmates and releasing and supervising those who don’t pose a danger to the community.

Khandelwal says we’re not doing enough to help people make it to court. “People don’t get notice—many have complicated lives. Poverty correlates with criminal-justice-system involvement,” she says. “We wonder why they don’t come to court—we should be helping them come to court.”

That help could be as easy as a phone call: A 2005 study in Jefferson County, Colo., found that simply calling defendants to remind them of their court date brought failure-to-appears down to eight percent from the county’s usual rate of 21 percent. After Oregon’s Multnomah County started using an automated reminder system in 2005, their failure-to-appear rate fell 31 percent; soon the system was saving the county $1.55 million each year, according to a 2007 report by the Multnomah County Local Public Safety Coordinating Council.

Despite the city-funded Arnold Foundation study, it’s unclear what reform may come to Seattle Municipal Court. The study was “part of some preliminary information-gathering” for Councilmember Tim Burgess, says Dan Nolte of the Seattle City Council Communications office. Burgess’ office declined to elaborate further.

“There’s a real opportunity here in Seattle; we have a deep commitment to social justice and are interested in finding ways to do business that don’t over-incarcerate people,” says Khandelwal.

As for Smith, he’s slowly getting back on his feet after his time in jail awaiting trial. Determined not to let those 41 lost days set him back, Smith has worked even harder since his release, securing a good job at a local catering company. He lives with his girlfriend in an apartment just blocks from the courthouse.

But Smith says the experience reminded him how difficult it is to climb out of poverty. “If you have the avenues and resources, you get out,” says Smith. If not, you go to jail.