New research published by University of Utah S.J. Quinney College of Law Professor Shima Baughman in the Boston University Law Review this week explores the devastating consequences of incarcerating people who are charged with misdemeanors and are unable to afford bail.
Baughman’s research argues that incarcerating defendants who are charged with low-level misdemeanors and who can’t afford bail is unjust. Defendants who can’t afford bail may lose a job or face other lifelong consequences as a result of being detained before trial, when 80 percent of the time the misdemeanor offenses they are charged with are later dismissed, said Baughman. She argues misdemeanor bail should be reformed, with a focus on ensuring pretrial release so defendants can lead productive lives while waiting for their minor cases to travel through the justice system.
Baughman’s research, “The History of Misdemeanor Bail,” came after she presented at the Boston University School of Law last fall with a group of scholars dedicated to examining problems with misdemeanor courts and the far-reaching consequences of misdemeanor charges on defendants who are not able to post bail because of their socio-economic circumstances and a variety of other factors. The symposium, “Misdemeanor Machinery: The Hidden Heart of the American Criminal Justice System,” explored ramifications, ethical concerns and meaningful reform for dealing with misdemeanor charges in the U.S. justice system today.
“There is a growing body of important empirical work that demonstrates the impact of being denied bail on those charged with misdemeanors. However, there is a lack of historical perspective in determining how we have dealt with misdemeanor crimes—my article provides this,” said Baughman.
“Considering this historical perspective, we learn that misdemeanors have always been plentiful but it is only relatively recently that they have become a serious problem and that their impact has become as serious as felony offenses. In today’s legal landscape, the process has become the punishment. Indeed, the immediate and lifelong consequences of being charged with a misdemeanor can be devastating. If a defendant is charged with a misdemeanor and cannot afford bail, a short detention results. And usually charges are dismissed soon thereafter. Judges and others in the system may not see this as a serious consequence, but this sort of detention can be devastating. Even a few days in jail for a misdemeanor often leads to an individual losing a job and future employment options, which, in turn, leads to further incarceration and increases recidivism. Misdemeanor detention also discriminates against the poor and minorities, especially against African Americans, who often have less options to pay for release,” Baughman added.
Bail is one of the most consequential decisions in criminal justice, she said. The ability to secure bail often makes the difference between guilt and innocence, retaining employment and family obligations, and keeping a place to live. The implications affect those charged with felonies —a reality that has been the focus for many years, but it affects even more so those charged with misdemeanors. A misdemeanor is theoretically a less serious crime with less serious consequences, but the effects on a defendant’s life are just as serious in the short term, added Baughman.
“There is one integral right that has historically accompanied misdemeanors: bail. Under the common law, after being charged with a misdemeanor, bail was a guaranteed right,” said Baughman. “This is not the case anymore as 80 percent of misdemeanor defendants are detained nationally.”
Baughman’s newest research complements the book she published through Cambridge University Press earlier this year titled “The Bail Book: A Comprehensive Look at Bail in America’s Criminal Justice System.”
The book is the first comprehensive analysis on bail in the U.S. since 1970 and comes at a time when efforts to implement widespread bail reform across the country are gaining momentum. In the book, Baughman traces the history of bail and demonstrates how it has become an oppressive tool of the courts that disadvantages minority and poor defendants. She draws on constitutional rights and new empirical research to show how we can reform bail in America to alleviate mass incarceration. By implementing these reforms, she argues, the nation can restore constitutional rights and release more defendants while lowering crime rates.
Baughman is a former Fulbright scholar and national expert on bail and pretrial prediction and her current scholarship examines criminal justice policy, prosecutors, drugs, search and seizure, international terrorism, and race and violent crime. Her teaching and scholarship at the University of Utah focus on criminal law and procedure and her work is widely featured in media outlets like the New York Times, Wall Street Journal, Economist, and NPR.
She began researching bail issues early in her career after realizing that the most consequential decision in criminal justice besides arrest is the decision whether to detain or release someone before trial.
Her research may provide a helpful framework as conversations about the future of bail in America continue.
“Though misdemeanors are less serious crimes than they once were, the rights guaranteed to misdemeanor defendants have diminished substantially… In today’s legal landscape, the process has become the punishment,” said Baughman.