Critics: Cash Bail Problematic but Nebraska Repeal Unlikely

Across the country, communities are reforming the cash bail system. Nebraska is considering a range of changes, but some say they don’t go far enough.

Here’s how the bail system currently works: a Nebraskan charged with a non-violent crime nearly always has the option to pay bail and go home. Typically you hand over 10% of the bond amount — $1,000 for a $10,000 bail, for example. (Note: Nebraska is one of just a few states that doesn't have a commercial bail bonds system.)

If you show up for your court date later on, you get most of that money back. But if you can’t pay $1,000, you have to sit in the county jail until your trial date — often weeks or months away.

An ACLU of Nebraska report from 2016 looked at jail records for Lancaster, Sarpy and Hall counties. It found nonviolent offenders who can’t post bond spent an average of 48 days in jail.

"If I don't show up for work tomorrow, I'm not going to lose my job," Lancaster County Public Defender Joe Nigro said. "But many of the people we represent, if they miss one shift at work, they're going to lose their job. They lose their job, they'll probably lose their housing, their kids can be placed in foster care. So even a short stay in jail can have a devastating impact not only on the person who has been arrested, but on their family. And keep in mind, these are all people who, under our system, are presumed innocent till proven guilty."

The report also found people of color are more likely to be required to pay bail and are asked to pay more in bail for the same offenses than white Nebraskans.

(Data & Graphic: ACLU of Nebraska)

A state law that took effect two years ago says judges have to consider how much a person is able to pay before setting the bail amount. But when a judge processes dozens or even hundreds of arraignments at one time, it’s not easy to take enough time with each person to figure that out.

ACLU Nebraska Executive Director Danielle Conrad says there’s growing awareness in Nebraska courtrooms about these concerns, but they haven’t seen the implementation yet.

"When it comes to really slowing down the process, ensuring everybody's rights are respected and upheld and really doing a meaningful assessment of an individual's ability to pay ... we're just not really seeing a significant shift in that very reflexive practice," Conrad said.

Amber Widgery is a senior policy specialist with the National Conference of State Legislatures. She told a Nebraska Judiciary Committee hearing recently every U.S. state, including Nebraska, has addressed at least some portion of the pretrial policy.

"Successful efforts to change pretrial policy have been largely bipartisan," Widgery said. "And recent polling from the Charles Koch Institute and the Pretrial Justice Institute shows that a majority of Americans favor ending the practice of jailing individuals who cannot afford money bail in all but extreme cases."

Conrad says the system criminalizes poverty. But she also argues it just doesn’t make financial sense.

"The other thing to keep in mind is Nebraskans are very conservative from a fiscal perspective," Conrad said. "And these costs, the impacts of this broken criminal justice system, are simply unsustainable and an unnecessary burden."

It costs between $80 and $90 per day to house pretrial inmates in Nebraska. And research shows cash bail isn’t even that effective at getting people to come back to court, and non-bail efforts have been effective. A University of Nebraska-Lincoln study found written reminders increase return-to-court rates.

Nebraska lawmakers are considering some changes. Sen. Matt Hansen of Lincoln says people can be charged with a city ordinance violation that doesn’t require any jail time. But judges might set a money bond the person can’t afford, so they end up sitting in jail anyway.

"And so somebody's got a couple hundred dollar fine for, you know, an open container," Hansen said. "That's not necessarily someone who we're really worried about being out in the streets. And similarly, if they had the money in their account, they would be."

Hansen’s bill to eliminate money bond for those offenses doesn’t have much opposition — but it also wouldn’t impact the majority of pretrial inmates.

Sen. Ernie Chambers introduced a bill to eliminate cash bail altogether. It sounds extreme, but other states, like New Jersey, have eliminated cash bail with positive effects. In fact, Washington D.C. eliminated cash bail in the 1990s. Instead of bail, a judge decides whether or not to release a person based partially on an assessment that looks at risk factors like criminal history.

Chambers says his goal is to uphold the legal tradition that the government should err on the side of innocence.

"Better that 100 guilty persons escape than that one innocent person suffer any punishment," Chambers said. "But in practice, like so many things in America, that’s thrown out the window when it comes to poor people or unpopular groups."

Many public defenders and other attorneys say the cash bail system results in defendants pleading guilty even if they have a strong defense, just so that they don't have to sit in jail waiting for a trial.

Lancaster County Attorney Patrick Condon doesn't agree. He testified against Chambers’ bill back in February.

"A lot of times defendants plead guilty because they’re guilty. Not because they’re poor, not because they’re rich, but because they’re guilty," Condon testified. "I don’t think it’s fair to make a blanket statement that we put people in jail because they’re poor. That’s not why they are in jail."

Sen. Chambers shot back later in the hearing: "For this prosecutor to say that people are not sitting in jail because they’re poor — either he’s a fool, a liar, or a racist."

Although Sen. Hansen's bill seems to have widespread support, Judiciary Committee Chairman Sen. Steve Lathrop says Chambers’ bill goes too far.

"If we legislate from Lincoln and mandate something, then we need to be prepared to help pay for it," Lathrop said. "And I think what's happening now is counties recognize that they are at, near, and in some cases over-capacity in the county jails, and that this makes good sense. Like they'll save money if they set up an office that does these assessments and provides that pretrial oversight. And so we're hopeful, I'm hopeful, that that'll happen sort of organically."

Lancaster County Public Defender Joe Nigro worked with Sen. Chambers on the bill’s language and says legislative change is absolutely necessary.

"I think legislative change is absolutely necessary because I think that there will always be judges who don't want to change or prosecutors that don't want to change," Nigro said. "I'm not going to say that it's all or nothing, if we can get something that's a step forward, but I'm not going to stop working on this issue until money bond is eliminated in Nebraska."

Nigro says pretrial detention reform is gaining momentum, but it’s not easy to change the path of the criminal justice system machine.

"It's just the way the system always works. So I think all of us become cogs in the machine of, this is just how we do this thing," Nigro said. "After working the system all these years I didn't think about this, and now I think about it all the time and I find it so morally troubling. And I want everybody else to recognize that and because I just think it's so obvious that we have to fix this system."

The unicameral will be back in session on January 8.

Correction: A previous version of this story said the state law concerning ability to pay bail took effect on July 1. It took effect two years ago.