"The rich man and the poor man do not receive equal justice in our courts," U.S. Attorney General Robert Kennedy told the Congressional Subcommittee on Constitutional Rights and Improvements in Judicial Machinery in 1964. "And in no area is this more evident than in the matter of bail."
In 1961, the Manhattan Bail Project sought to quantitatively measure a defendant's flight risk in an effort to increase the rate of releases on the defendant's own recognizance (OR), where the accused just has to promise to show up for his court date. Following this trend, the Bail Reform Act of 1966 declared that defendants in non-capital crimes (all but the most heinous murders) had a right to be released on OR. If a judge determined that additional conditions were necessary to ensure the person's court appearance, then the judge had to select the least restrictive conditions possible, such as travel limitations, home detention, or monetary bond. Pretrial incarceration would be the last resort, used after a judge deemed all other alternatives insufficient. The legislation ruled that a judge's only pretrial goal was securing a defendant's appearance in court.
Michael Short
Angel Garcia, unable to pay the $450,000 bail, sat in jail for six months before he was acquitted at trial. His family lost their apartment and his kids became ill.
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Rising crime rates through the 1970s and '80s, however, shifted this paradigm, as law enforcement officials argued that judges must also consider the potential danger a defendant poses to society. States, including California, amended their laws so that public safety would also be a primary factor in pretrial decisions. Congress followed suit with the Bail Reform Act of 1984, rolling back previous reforms.
As criminologist John Goldkamp wrote in the Journal of Criminal Law and Criminology in 1985, "The social and historical shift in the recent decades, away from poverty and civil liberty concerns and toward a climate marked more by heightened public fear of crime and 'law and order' politics may explain the evolution of the danger-oriented agenda of bail and pretrial detention practices."
Within three days of a person's booking into county jail, he stands before a judge for an arraignment hearing, where the judge releases him on his own recognizance, sets a bail amount, or denies him bail eligibility. To make this decision, the judge reviews the person's criminal history, any past cases of skipping court dates, and the police report of the current crime.
The bail amount is often based on the charge. Judges usually refer to the county's bail schedule, which suggests figures for different crimes. Those like Dorton who have been charged with multiple counts receive particularly high bail because of "bail stacking," the judicial practice of combining the bail amounts for each of the charges. Those without the cash or property to put up as collateral must go to a commercial bail bondsman, who will post the bail for, generally, a 10 percent fee.
Many don't have enough money for that. In San Francisco, judges have the option to order probation-style supervised release for those defendants, through the nonprofit San Francisco Pretrial Diversion Project. This alternative is limited. Because the organization operates independently, without a law enforcement arm, it does not have "the teeth," says the program's Chief Operating Officer Allison McCovey, to risk supervising those accused of violent or sex crimes. From January through September 2012, judges have referred 286 defendants to SFPDP. Program workers interviewed them for around half an hour, then sent the judge a report detailing the person's community ties. The report is purely informational and does not make any recommendation. Of those 286 cases, judges approved supervised release for 33.
Anthony Dorton had never been in jail before. The cramped dormitories, the regimented days, the inevitable conflicts with other inmates, the absence of privacy and quality food — it all hit him like a first round uppercut. On day one, he figured he'd be free soon. "They've got nothing on me but this bogus-ass story," he kept telling himself, as he replayed the previous two weeks in his mind.
Twelve days before, he met the woman who would accuse him of assault and pimping. His girlfriend introduced them. The woman (the DA's office requested that her name not be disclosed due to the nature of the accusation) said she had recently become homeless. Dorton told her she could crash at his apartment for a couple nights, while she sorted things out. But a few days turned into over a week, which was longer than Dorton anticipated. He dropped hints — "So what's your plans?" And she'd tell him she was just waiting for a call back from her sister or a friend. On the 11th day, Dorton told the woman that she had to leave. He dropped her off in the Mission.
Around 3 a.m., the woman called him, he says. She was crying, saying something about a guy she had gotten into an altercation with. Dorton had an idea how she made her money, but didn't want to pry. The woman asked him to pick her up. He refused and hung up. She kept calling. He picked up on the fourth or fifth try. She was pissed, he recalls, screaming at him and threatening to call the police if he did not come get her.
"The police?" he said, bewildered. "Bitch, call 'em. What the fuck you gon' tell the police?"
