Coronavirus Crisis Shows Need For Permanent Bail Reform

By Matt Morgan
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Law360 (March 29, 2020, 8:02 PM EDT) --
Matt Morgan
Matt Morgan
As the world anxiously feels the effects of coronavirus seeping into all facets of our lives, we must be vigilant about recognizing and fending off the deadly consequences it could have on our vulnerable, marginalized populations. I am particularly concerned about the potential impact on the innocent inmates awaiting trial in our jails. Luckily, Florida is among a handful of states working to prevent utter devastation among this population.

State Attorney Andrew Warren of the 13th Judicial Circuit in Florida took several important steps to help contain the virus in our jails. Among other measures, he has ordered police to minimize arrests for nonviolent misdemeanors, to release pretrial detainees who do not pose a threat to public safety and is dismissing certain nonviolent misdemeanor and criminal traffic cases. He has also halted filing charges for local ordinance violations, nonviolent misdemeanors and criminal traffic offenses.

State Attorney Aramis Ayala of the 9th Judicial Circuit is also working to reduce the number of people held in jails unnecessarily.

Nationwide, every person currently sitting in a jail awaiting trial for a low-level offense should be released immediately. To do this, state attorneys should be reevaluating and easing how they charge people and set bonds, increasing the stipulations to release on one’s own recognizance and lowering bonds, and working with jails to identify all pretrial inmates that could reasonably be released without risking public safety. These are just some of the steps Ayala is taking in her district.

Further, police should be stopping all arrests of nonviolent misdemeanors and traffic violations (DUIs and those driving with permanently revoked licenses notwithstanding). These actions now will save lives.

I applaud the state attorneys for being leaders on this issue, and I urge the rest of the country to take note. This should be a model for every state and county jail in the country. When the coronavirus hits our jails, I expect we will see a terrifying number of severe infections and deaths.

However, the efforts to reduce our jail population should not stop once we get the coronavirus under control. While this pandemic is laying bare many of this country’s broken systems, the criminal justice crisis in America is largely swept under the rug. It began long before the coronavirus hit, and if we don’t act now, it will continue long after.

To understand the depth of this issue, consider some of the startling statistics. The U.S. has 5% of the global population, but 25% of the world’s prison population.[1] This disproportionately impacts African American and Latino communities. One out of every three black boys born today can expect to go to prison in his lifetime and one of six Latino boys will go to prison, in comparison to one out of 17 white boys.[2]

It’s blatant racism in broad daylight, and collectively we allow it to happen. We all need to stand together and begin to scream at the top of our lungs about this injustice. It goes against every ideal this great country was founded upon. Life, liberty and the pursuit of happiness, for all the people. There is no greater loss than the loss of one’s freedom.

Beyond the prison populations, a shocking number of people are incarcerated who have not yet been convicted of a crime — in jail at this very moment all because they do not have $100 to bail themselves out. They sit there, many on nonsense charges, for 30 to 50 days while they await their court date. A staggering 76% of the jail population is currently innocent, convicted of no crime.[3]

I see a lot of injustice in my line of work, but this tops the list for me. It’s unfair, and it’s un-American. Innocent until proven guilty — a tenet of American democracy and justice — just doesn’t apply to people of color in our country. Instead, our system runs on the basis of “incarcerated until proven rich.”

Beyond the COVID-19 pandemic, we should not be arresting and jailing people who commit low-level, nonviolent offenses. Driving with a suspended license is one of the most common and repeated themes about why people are incarcerated. Homeless people sleeping where they’re not supposed to be sleeping is another common arrest. Detaining these people until their trial when they aren’t able to post bond creates what Ayala calls a poverty penalty that punishes them for not having financial resources.

It should become common practice for prosecutors to recommend to judges defendants accused of certain low-level nonviolent offenses be released without having to post bail while their cases are pending. We should also stop holding low-level probation violators without bond.

As a nation, we should consider scrapping monetary bond altogether, opting instead to release those charged without bond or keep them in jail until trial, depending on the charges, as New Jersey has. At the very least, judges should be directed to consider whether a person can make bail before they set it, which is how it works in Maryland.

Mass incarceration hurts all of us. It destroys lives, devastates families and robs us of the potential of all those who are unjustly imprisoned. But it also costs us, the American taxpayers, $80 billion per year.[4] We sure could use that $80 billion at times like these.

It’s past time we level the playing field for low-income nonviolent offenders, and I’m so encouraged to see state attorneys Warren and Ayala be leaders on this issue. I urge all states across the country to follow their lead, and for everyone to use this tragic time as a catalyst to make lasting change in our criminal justice system.



Matt Morgan is an attorney at Morgan & Morgan and the founder of the Community Bail Fund.

"Perspectives" is a regular feature written by guest authors from the access to justice field. To pitch article ideas, email expertanalysis@law360.com. 

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.


[1] https://www.washingtonpost.com/news/fact-checker/wp/2015/04/30/does-the-united-states-really-have-five-percent-of-worlds-population-and-one-quarter-of-the-worlds-prisoners/

[2] https://www.sentencingproject.org/wp-content/uploads/2015/12/Race-and-Justice-Shadow-Report-ICCPR.pdf

[3] https://www.prisonpolicy.org/factsheets/pie2019_allimages.pdf

[4] https://eji.org/news/mass-incarceration-costs-182-billion-annually/

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