Low-income defendants jailed for months awaiting trial for misdemeanors

Some days, Tray Smith feels as though the justice system is out to get him. Last September, Smith missed a Buncombe County court date for a misdemeanor because he was already in jail in Caldwell County on a charge of possessing marijuana paraphernalia.

“I didn’t have pot,” he says. “But there was residue.”

Smith was jailed because he couldn’t come up with bail money. “Bail was $7,500,” he explains. “That would mean I had to pay $750 to a bail bondsman, and that’s not refundable.”

Smith was released after nearly two months in jail, but the missed court date — he was charged with trespassing for sleeping on a park bench — puts him at risk of spending still more time behind bars. He has another court date on Jan. 29.

Across the nation, people are being held in jail for days, weeks, even months awaiting trial on misdemeanor charges, because they can’t raise the cash to get out. That, in turn, can lead to job loss and homelessness. Some attorneys now argue that this is tantamount to debtors prison, which is unconstitutional.

Smith, who has diabetes, has been homeless since being released from foster care seven years ago and lives in a tent. For the plast several months, the 25-year-old says, his disability check has been held up in a bureaucratic nightmare.

That he should have to come up with $750 to make it to a court date in another county just because he fell asleep on a park bench infuriates the Rev. Amy Cantrell, founding director of BeLoved House in Asheville. The nonprofit works to support people experiencing homelessness and build community.

Smith’s case is far from unique, Cantrell points out. Nationally, about 60 percent of the folks in jails are there awaiting trial, often because they can’t come up with as little as $50 for bail. Cantrell says she’s accompanied dozens of people to court who found themselves in that situation. Some have spent weeks in jail for misdemeanors such as sleeping in a public place.

“For these folks, it’s your money or your body,” she notes, adding, “There’s a basic inequality in that.”

In almost two years living without a home in Asheville, Brandy Ohlin, 31, has been arrested and held three times for trespassing, the automatic charge after the first such arrest. “If a person who’s been banned from the park goes in and sits down, he or she can be arrested for trespass, and I have seen people being harassed this way,” Cantrell explains.

“I missed a court date,” says Ohlin. “But I don’t have no way to tell time. I live under a bridge.”

Cash bail leaves many low-income people facing an impossible dilemma: If they pay the bondsman, they may not be able to pay the rent, but if they pay the rent instead, they’re jailed and will probably lose their job when they don’t show up for work.

Criminalizing poverty

A report released Jan. 3 by the University of North Carolina’s N.C. Poverty Research Fund documents the extent of the problem. In “Court Fines and Fees: Criminalizing Poverty in North Carolina,” researchers Heather Hunt and Gene Nichol use a combination of stories and data to document the massive impact of court fines and fees across the state.

“Most criminal defendants are poor,” the report notes under the heading “Perpetual Debt.” Nationally, it continues, “about 80-90 percent of those charged with a criminal offense are poor enough to qualify for a court-appointed lawyer. Around 20 percent of jail inmates report having no income before they were incarcerated, and 60 percent earned less than … $16,000 a year. Almost a third of defendants are unemployed before their arrest. Many defendants are disadvantaged in other, related ways.”

In North Carolina, the picture is equally grim: “Thirty percent of prison inmates have no more than a ninth-grade education; 99 percent are, at most, high school graduates. Seventy percent of newly arrived prisoners screened for chemical dependence need substance abuse treatment.”

Homelessness is another big problem. “A state Department of Correction survey found that 36 percent of people entering prison had been homeless at some point, and 7 percent had been homeless immediately before imprisonment,” most often due to unemployment, substance abuse or a previous criminal conviction.

Meanwhile, a 2016 study from the University of Pennsylvania found that defendants who were held in jail while awaiting trial for a misdemeanor were 43 percent more likely to be sentenced to serve time, and when they were, the average sentence was more than twice as long. Furthermore, the study found that defendants who are detained pretrial are more likely to commit crimes in the future.

Thus, the current system of cash bail punishes low-income people more than others and keeps people who are supposed to be innocent until proven guilty locked up for weeks or even months, notes constitutional attorney Scott Holmes.

“It should really be reserved for people who truly are a flight risk — say, someone with a passport that’s been stamped in several countries or who might be a safety risk,” says Holmes, a professor at the North Carolina Central University School of Law. “The burden of proof should be on the state. … Too often, people can’t even afford bus fare, so they’re not really a flight risk.”

Punitive fees

Last year, Southerners On New Ground, an Atlanta-based nonprofit, raised more than $1 million nationally to secure the release, on Mother’s Day, of more than 100 African-American mothers from jail. Asheville resident Nicole Townsend works with SONG.

“Some people are doing what they do — sex work, for example — just to survive. It’s the only way they know to survive,” she points out. “They shouldn’t be in jail just because they’re poor. … The bail is usually under $10,000, but coming up with just 10 percent of that is impossible for someone with a low-wage job.”

Bail, notes Holmes, is not the only problem low-income people face when they get pulled into the justice system. A $15 traffic ticket, for example, also comes with a $187 court fee. “You don’t just have to come up with the fine, which is reasonable. You have to come up with that $187 too,” he points out.

Cristina Becker of the American Civil Liberties Union of N.C. details some of the charges people often face when accused of a crime in North Carolina: $10 a day before conviction and $40 a day afterward, if they’re in jail; $600 for lab tests; $187 or more for court costs; $40 a month for probation.

Even the appointed attorney for a person who can’t afford to hire one isn’t free if the defendant is found or pleads guilty. That legal representation costs $50 for the first appointment and $55 an hour after that — even for a misdemeanor such as trespassing. And often, defendants are pressured to plead guilty to a crime just so they can get out of jail. The University of Pennsylvania study found that defendants who are held in jail while awaiting trial are 25 percent more likely to plead guilty than those who are released — at which point they end up owing the attorney’s fees as well as jail and court fees.

“People leave prison owing tens of thousands of dollars, and then they can’t find a job because they’ve been in prison,” Becker explains. “In Guilford County, a young man whose grandmother had given him a new pair of sneakers had those shoes confiscated because he didn’t have any money. He left court in his socks.”

In Robeson County, a single mother who was on her way to pay her rent after court was forced to hand her rent money over to the court, continues Becker. The judge said he knew she had money.

Unconstitutional practices

After 18-year-old Michael Brown was shot and killed by a Ferguson, Mo., police officer in 2014, the U.S. Justice Department launched an investigation. The resulting report, released March 4, 2015, found that Ferguson Municipal Court had a pattern of “focusing on revenue over public safety, leading to court practices that violate the 14th Amendment’s due process and equal protection requirements.”

Those practices, the report concluded, exacerbate the harm caused by the town’s unconstitutional police practices, “imposing particular hardship upon Ferguson’s most vulnerable residents, especially upon those living in or near poverty. Minor offenses can generate crippling debts, result in jail time because of an inability to pay, and result in the loss of a driver’s license, employment or housing.”

In addition, the investigation found, “The harms of Ferguson’s police and court practices are borne disproportionately by African-Americans and … are due, at least in part, to intentional discrimination.”

All of this violates the U.S. Constitution, notes Holmes. “We don’t do debtors prisons in this country,” he says.

Under President Barack Obama, the Justice Department urged local courts to seek alternatives for indigent defendants and refrain from levying fines and fees merely to generate revenue. Last month, however, Attorney General Jeff Sessions rescinded that and many other Obama-era policies.

Signs of change

Nonetheless, Becker believes the tide is beginning to turn.

In Georgia, a judge found that the court must conduct a financial assessment to determine whether a defendant has the means to pay. If nonpayment is willful, the person can be jailed for noncompliance; otherwise, the fees must be adjusted.

Kentucky, meanwhile, is experimenting with alternatives to bail such as pretrial risk assessment, supervised release, drug treatment and ankle monitors. According to a March 2017 report by The Pew Charitable Trusts, local jurisdictions from Alabama to Ohio have also begun changing their bail systems.

And in December, the Arizona Supreme Court ruled that the state’s judges must consider releasing defendants without bail, and if they do set bail, they must consider the accused’s financial situation and set the lowest amount of bail that is feasible under the circumstances.

Closer to home, Buncombe County’s pretrial release program helps hundreds of low-income, nonviolent offenders get out of jail every year without having to come up with cash, notes District Attorney Todd Williams. But that’s not the case in other Western North Carolina counties, says Becker.

“I think there should be an assessment to ascertain that people are safe and that people will come to court,” Williams explains. “I mean, unless they’re in jail with no bond because they’re suspected of a violent crime, everyone awaiting trial in jail is there because they can’t come up with bond. … Our goal is to ascertain who really needs to be in jail and who doesn’t.”

And ultimately, keeping people in jail doesn’t even make financial sense, Becker maintains, since it costs about as much as offering services such as drug treatment, mental health assessment and referral, and job counseling, which would be more humane.

“It’s just mean,” she says.