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Jail or bail? We can learn from the USA

Penelope Gibbs
06 Apr 2019

People who follow this blog know that I am slightly obsessed by the difference between face to face encounters and online/virtual ones. This week I went all the way to Boston USA to discuss the over-use of remand with International colleagues. It made a huge difference that we were all in a room together. Most of us had never met before and the conversation was electric (thanks to Fair Trials and the Criminal Justice Policy Program at Harvard Law School) Everyone came away learning more than I think we ever could have done from a web forum or skype conversation.

The US bail system is very odd. For at least 50 years they have avoided the issue of who should or should not get bail by making people offer a huge amount of money to get out of jail pre-trial – having to offer a bail bond (“surety”) of $50,000 is not uncommon. If the defendant does not turn up for their court appearance, the money is forfeited. A bail bond industry has developed which underwrites bail bonds for those willing and able to pay 10% of the value. So rich people pay the whole amount, those on middling incomes pay bail bond companies, and poor people languish in jail because they and their families cannot afford to pay at all.

Its easy to knock the States for their eccentric bail bond system, but they also host some really exciting developments. New York State has just radically reformed its bail legislation, to make it much more difficult to remand defendants. They have passed legislation to eliminate money bail almost completely. Now most defendants must either be detained pre-trial, or released on conditional/unconditional bail. This legislative reform is radical – part of the project to reduce mass incarceration in New York State.  There are also innovative projects springing up all over the USA.

We were all particularly inspired by the De Bug “court doing” (as oppose to “court watching” or observing) project which is based in Silicon Valley but could work anywhere. This comes out of the community organising movement and harnesses community resources to help those in trouble with the law.  A key reason people are denied their freedom as they wait for their trial is that they are suspected of absconding or not turning up at court. Those who face serious charges, who are “homeless” and those who have a record of not turning up for court appearances are all seen as high risk. In England and Wales, ragged and time pressed defence lawyers try to prevent their clients being remanded by gathering information from family members or care workers and by trying to identify stable and suitable accommodation. If they are very lucky, family members will be in the court building so they can snatch a quick conversation. The De Bug project (a community organisation funded from private donations) helps defendants get bail at their first appearance, or to get bailed having been remanded, by providing evidence that the defendant has community ties and supporters.

De Bug helps the defence lawyer (public defender in USA) liaise with and get information from the family. They have a team (some paid, some voluntary) stationed in criminal courts waiting to help. When they see the list of who is appearing in court, they go up to family members and introduce themselves. They are also allowed to make an announcement in front of the whole court-room about the service they offer. Then a De Bug worker sits down with each family to gather all the information which might help get their “loved one” bail (preferably not secured by money). They ask about where the defendant lives and could stay, about their work and about who could give them a lift to court. This information is entered into a form for the Public Defender to use in putting the case for bail. This is a goldmine for the defence – information to back up how that individual could be supported in the community as they await trial. This intensely personal information disrupts the court conveyor belt and makes it much much harder for the judge to justify pre-trial detention.

The De Bug team does even more work to get bail for someone who has been on remand for a while. For this they collaborate with the family to produce a “social biography project” – a collection of letters, pictures, relevant documents about the defendant to provide even more information about their community ties and the support available in the family. This is used by the public defender in his evidence to the judge. Those without an actively supportive family get help too.

The project is very successful – the pre-trial remand rate is nearly halved in those courts where De Bug is working. The power of De Bug is that it enables the families of defendants to help their loved ones. So often in England and Wales the family feels powerless and passive as the system processes their nearest and dearest and makes decisions on remand that harm the whole family.

The only challenge with using the De Bug model elsewhere is that it is clearly resource intensive – you need a team in court every day. But through reducing remand, the state saves considerable imprisonment costs. And more importantly, those who have not been convicted are allowed to be free to work and contribute to society.

I left Boston enthused by the passion of colleagues to reduce remand but musing on how to ignite that same passion in England and Wales. Prison is a dead end, but few are aware that we are sending so many people who have not been convicted straight into that dead end.