July 2023 Updates on Bail Reform
Cash Bail
This month, Americans witnessed both ends of the pretrial detention spectrum. First, on July 18, the Illinois Supreme Court upheld a state law abolishing cash bail. On September 18, Illinois will officially be the first state to do so.
The Supreme Court’s decision reversed the Kankakee County Circuit Court decision finding the new law unconstitutional. The law—entitled the Safety, Accountability, Fairness and Equity-Today Act (SAFE-T)—also covers use of force by police officers, civil rights violations, corrections, and diversion qualifications.
Importantly, the Supreme Court noted that the Circuit Court “incorrectly assumed that abolishing monetary bail undermines the State’s interests. The court appeared to believe that monetary bail is the only way to assure a defendant’s presence and to protect the public.”
There are various conditions a court can impose to ensure public safety and an accused’s presence in court—such as GPS electronic monitoring, a curfew, and routine check-ins with pretrial services. The Illinois Supreme Court’s decision and the SAFE-T Act recognize that monetary bail isn’t the end-all-be-all condition, and that other conditions are more equitable. The Supreme Court concluded:
“The Illinois Constitution of 1970 does not mandate that monetary bail is the only means to ensure criminal defendants appear for trials or the only means to protect the public. Our constitution creates a balance between the individual rights of defendants and the individual rights of crime victims. The Act’s pretrial release provisions set forth procedures commensurate with that balance.”
The individuals who are least likely to be able to afford to pay bail are the ones who suffer the most disastrous consequences; while waiting in pretrial detention, they may lose their only source of income and their ability to provide for their families. And as Nicole Zayas Manzano wrote for the American Bar Association’s Human Rights Magazine, “[t]his two-tiered system not only impacts low-income people, but it also overburdens minorities and reinforces stark racial disparities behind bars. Data shows that judges often set higher rates and higher amounts of cash bail for people of color, particularly Black people, than white people.” Prohibitions on cash bail such as the SAFE-T Act create a more equitable system of justice.
Pretrial Detention
On the other side of the spectrum were the cases of Maurice Jimmerson and Condell Benyard. The two men were tried for numerous counts involving alleged “gang violence” in Dougherty County, Georgia.
Just a few days after the Illinois Supreme Court upheld the law abolishing cash bail, Mr. Benyard was acquitted of a whopping 26 counts after spending 7 years in pretrial detention. Mr. Jimmerson, his co-defendant, was in pretrial detention for 10 years. His case ended in a hung jury, and the court declared a mistrial.
Surprisingly, the prosecutor has stated that he intends on retrying Jimmerson, despite the apparent lack of evidence—the state’s “eyewitness,” who came forward three years after the alleged shooting saying that he saw Jimmerson commit the crime in order to get out of prison, recanted his statement. According to reporting by Atlanta News First, the prosecutor “believes he’ll get a guilty verdict because he’ll have more time to call witnesses who can link Jimmerson to the shooting.”
But as everyone knows, the more time goes by, the more difficult it is to find reliable eyewitness testimony. And as the California Innocence Project notes, eyewitness misidentification is one of the leading causes of wrongful convictions. If Jimmerson’s prosecutor hasn’t been able to find a reliable eyewitness in the last 10 years, how will he be able to do so now?
Jimmerson’s and Benyard’s cases highlight one of the many tragedies of pretrial detention: its disregard for the presumption of innocence and due process. Jurors are instructed during a criminal case that every accused person is entitled to the presumption of innocence. In this case, Benyard was found not guilty after spending seven years behind bars. Courts across the country, on both the state and federal level, have found lengthy pretrial detention periods unconstitutional. For example, the Tenth Circuit Court of Appeals explained in United States v. Theron that,
“from the defendant’s point of view, delay is not synonymous with due process. A defendant who is required to wait long periods to be tried suffers from a magnitude of disabilities which in no way contribute to his well being. If he is incarcerated awaiting trial, unnecessary delay in the commencement of the trial could result in irreparable injury to an innocent individual.”
Benyard is such an individual, and although Jimmerson’s trial resulted in a hung jury, the state nonetheless failed to prove him guilty beyond a reasonable doubt. Yet Jimmerson is currently being held on $400,000 bail, awaiting his next trial. His attorney, Andrew Fleishman, has filed a motion to dismiss the charges based on violations of Jimmerson’s rights to due process and a speedy trial.
Pretrial detention is meant to serve a regulatory function, not a punitive function. If the length of Jimmerson’s pretrial detention does not violate the Constitution, what does?
