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Suggesting Legislation from the Bench: The Third Circuit Hints at the Necessity of Bail Reform

As we all learned in our social studies class, it is the essence of our government that the three branches operate independently. The judicial system prides itself on not creating legislation, but only interpreting the laws as written. However, the lines become blurred when the judiciary notices an error in our legislation causing ripples of injustice in our legal system. The court may send signals to the legislature to take corrective action to cure an unintended effect of legislation.

Just last week, the Third Circuit highlighted the bail system as one of the “threats to equal justice” in Curry v. Yachera, No. 15-1692, 2016 U.S. App. LEXIS 16183 (3d Cir. Sep. 1, 2016). The decision sheds light on the all too common circumstance when an individual is charged with a crime, but cannot afford bail.

Mr. Curry, the plaintiff in a malicious prosecution complaint, read about a warrant issued for his arrest in a local newspaper for a theft at a Wal-Mart store. Mr. Curry was arrested and charged in October 2012 with theft by deception and conspiracy. While in jail, he was again charged with an unrelated theft. After two months in jail, the second charges were dropped, with the detective’s sincerest apologies for his error. Mr. Curry was still forced to stay in jail because of the pending initial charges.

Our criminal justice system operates under the principle that one is innocent until proven guilty. However, it seems that Mr. Curry suffered all the consequences of a guilty man well before a jury or judge assessed his guilt. During his imprisonment, Mr. Curry lost his job, missed the birth of his first child, and feared the loss of his home and car. Ultimately, Mr. Curry was forced to stay in jail because he could not afford his $20,000 bail for an offense involving a theft of $130.27. Although Curry maintained his innocence, he eventually pled nolo contendere in order to return home. The court branded Mr. Curry’s journey as the “plight of poor defendants.”

Interestingly, about half of the court’s opinion was dedicated to detailing the unfortunate facts that led Mr. Curry to file his complaint, and the unfairness created by the bail system. The court recognized the injustice faced by Mr. Curry, but further compounded it when it affirmed most of the holding of the lower court to dismiss his complaint. However, the court modified the dismissal to one without prejudice, allowing Mr. Curry to refile his complaint if he succeeds in challenging the validity of his conviction.

Highlighting the disturbing nature of the bail system - “the access to wealth is what often determines whether a defendant is freed or must stay in jail” - the court noted that the system results in individuals who are low public safety and flight risks being imprisoned simply because they cannot afford the costs of bail. In its opinion, the Third Circuit took note of the recent recognition of the inequities of bail by citing to numerous articles and studies discussing the issue. Individuals suffer personal hardships, jails are overcrowded, and non-violent offenders remain imprisoned, while more serious offenders with access to money are out on bail. For example, in 2013 in New York City, a shocking 54% of jailed defendants remained incarcerated until the resolution of their cases, simply because they could not afford bail of $2,500 or less.

New Jersey has taken steps to address these issues under the leadership of Chief Justice Rabner and Judge Glenn A. Grant, the Acting Administrative Director of New Jersey Courts. As outlined in November 2014 legislation, starting in January 2017, pretrial services will create risk assessment and release recommendations to permit many defendants to be released on non-monetary conditions or on their own recognizance. The legislation should shift the focus of bail to an assessment of the danger of the defendant, not their financial means. With the growing buzz about this issue, it is likely that many states, and hopefully the federal government, will follow suit and implement reforms to correct this injustice.