Most people sitting in jails aren’t there because they’ve been sentenced. It’s because they’re awaiting trial.
For some, it’s because they can’t raise a few hundred dollars of bail to get out. Now, the state Legislature wants judges to get on the same page when considering a defendant’s ability to pay before they set a bail amount.
“The last thing we want is people staying in jail because they can’t pay,” said state Sen. Brian Strickland, R-McDonough.
The bill he’s carrying says judges shall consider a person’s ability to pay before setting bail for misdemeanors and before setting any fines. (Bail is money or property that will be forfeited if an accused person fails to appear for trial.)
A lot of judges already consider a person’s ability to pay, following precedents set in other cases, Strickland said. But Senate Bill 407 spells it out in black and white and makes it uniform throughout the state: consider a person’s assets, earnings and financial obligations. Judges already consider things such as whether the accused is likely to flee or is dangerous, and that won’t change.
“A $500 fine for some of you, some people I know, is just writing a check and going home, but for others that could be a financial hardship that can really put them under,” Strickland told a state House committee recently.
So while some people can bond out immediately, others have to wait for a hearing where they can plead poverty. In the meantime, they miss work, school or family.
“In a lot of places in this state, bail is set by a preset schedule such that people who can pay bail get out of jail; people who cannot pay stay in jail,” said Sara Geraghty, managing attorney at the Southern Center for Human Rights. It’s a nonprofit that, among other things, litigates what it sees as illegal, unconstitutional or inhumane criminal justice practices.
She said she would characterize SB 407’s bail changes as a missed opportunity.
“This was an opportunity to change that two-tiered pretrial system,” she said.
She wishes the bill had included a provision that required an inquiry into a person’s ability to pay immediately after arrest.
“The idea being that if you’re going to release people who can pay, you have to have a mechanism for releasing people who can't pay,” she said.
There’s some legal pressure on the state to set new bail rules. Court rulings in California and Texas, for example, have raised doubts about the constitutionality of setting bail without considering if the person can pay it. A case against the city of Calhoun, in north Georgia, for its bail practices has been in litigation and appeals since 2015.
The bill is almost certain to become law by the time the Legislature ends on March 29. It originated with Republican Gov. Nathan Deal, and it has already passed the state Senate unanimously. The ideas in it came from the Georgia Council on Criminal Justice Reform.
In 2011, Deal faced a growing prison population and first appointed a council to figure out ways to address that.
Over the last few years, the Legislature has overwhelmingly approved several bills from the council, arguably making criminal justice the outgoing governor's signature issue.
They’ve raised the threshold dividing a misdemeanor from a felony for some crimes such as shoplifting, so that fewer people go to prison. They’ve set up and funded so-called “accountability” courts. That’s supervision by a judge paired with rehab, counseling or other services for certain offenders.
Georgia’s prison population is declining. It reached nearly 6 per 1,000 people in 2003 and is now is down much closer to 5 in 1,000. That’s still about twice as high as it was in the late 1970s, according state figures and the Prison Policy Initiative, a nonprofit.
The bill makes a few other changes, like specifying that law enforcement can issue citations instead of making arrests for some misdemeanors. And it makes several changes to data exchange and other mainly technical matters.
The Georgia Association of Chiefs of Police supports the bill. And Bryan Tyson, executive director of the Georgia Public Defender Council, said that “individual ability-to-pay determinations for bail in misdemeanor cases enhance public safety while ensuring individuals are treated equally.”
The sheriffs association didn’t oppose the measure, but its leader did express some concerns about the overall effect of criminal justice bills over the last few years.
About 60 percent of people in jails are there awaiting trial, but it’s not clear how many of them simply can’t make bail.
Terry Norris, executive director of the Georgia Sheriffs’ Association, said a growing number of people in jails who are awaiting trial are in for state parole or probation violations and so can’t be released anyway.
They are “state offenders sitting in a county jail that you and I as local property taxpayers are footing the bill for,” he told lawmakers.
“We have a growing cost as a result of criminal justice reform,” Norris said later.