A person’s fate is decided at a pre-trail where a judge considers if the defendant is a danger to society. Many violent offenders aren’t offered a choice; they go to jail before their trial no matter what. But most nonviolent offenders are given the opportunity to pay bail and go about their life, as long as they return for their court date. Some may be required to stay sober if it’s a drug or alcohol related offense or adhere to other requirements.
The cash bail system discriminates against those with low or no income, according to Kat Griffith, an attorney with Deschutes Defenders, a public defense nonprofit in Bend. Even though defendants in Oregon must only post 10% of their bail amount, many still can’t afford it, Griffith said.
In Oregon, the criminal justice system honors the defendant’s right to a trial within 60 days of the charge. But for those living paycheck to paycheck, any time in jail may be a huge disruption to their lives. Even a few days or weeks could cost them their job, their home and even their loved ones, Griffith explained.
Griffith said that for many of her clients—people who can’t afford a lawyer—this system may play a motivating factor in their decision to plead guilty even if they are innocent. They just want to avoid being in jail, she said. It may also influence the defendant’s decision to plead guilty even when a law enforcement officer has violated their constitutional rights: such as searching their car without a warrant, for example.
“The biggest fallout I see from people who can’t afford bail is they become part of a cycle,” Griffith said. “Pleading guilty means something; it means you have a criminal conviction, and once you have a criminal conviction, that makes life a lot harder for you once you’re out of jail. You’re looking at challenges with housing, challenges with getting a job, challenges in your social circles, especially depending on what type of crime we’re talking about.”
Once people are in the system, they may be more likely to reoffend because they can’t find housing and can’t afford food, a pattern that Griffith has also seen with some of her clients in Bend. If they do not have a home, the person may end up sleeping on a park bench in Drake Park, even if they’ve been banned from downtown, for example.
The bail system dates back to the Magna Carta, the English document that is the source of many laws in the U.S. In Oregon, the bail structure was taken from the Indiana Constitution. Today, the system is continually challenged in court in Oregon as an alleged violation of a defendant’s rights to due process.
In addition, the court keeps 15% of the amount of bail posted, the if the defendant is found innocent. The court may also keep all of the bail at the end of the trial to pay for fines, public defenders, restitution and more.
The bail system was reformed in 1978 when the Oregon Supreme Court eliminated the for-profit bail bondsman industry. It is one of only four states to do so, but still not as progressive as California, which abolished cash bail altogether in 2018. Now, most California defendants must sign a form promising to return on their court date, while others will be supervised while awaiting their trail.
One example of a local program that could serve as an alternative to bail is the Justice Reinvestment Program, spearheaded by Deschutes County District Attorney John Hummel. The program is available to some people as an alternative to jail or as a transition once they're released. They receive intense supervision and wrap-around care focused on skill building and cognitive-behavioral therapy. While the program is a financial investment, it's still much cheaper than holding a person in jail, Hummel has said. In Oregon, the average cost of a prison inmate was $44,000 a year in 2015, according the Vera Project. That same year, the state spent $639 million on the prison system.
Another alternative to bail system could be to provide defendants with GPS trackers and/or ankle bracelets to prevent them from drinking alcohol. These tools are sometimes offered to people who can afford to pay for them in Deschutes County.
This article will be updated with per person, per day costs for people in custody in the Deschutes County Adult Jail.