The recent death of a homeless man in a New Hampshire jail has brought renewed attention to the practice of jailing people for minor crimes when they can’t afford bail.
Twenty-six year old Jeffrey Pendleton was found dead in his cell at the Hillsborough County House of Corrections in Manchester last month.
He was being held on a misdemeanor marijuana possession charge and couldn’t afford to pay his $100 bail.
Pendleton’s cause of death remains under investigation.
Gilless Bissonnette, legal director for the New Hampshire ACLU, joined NHPR's Morning Edition to talk about this issue.
Do we know how widespread this issue is in New Hampshire?
We don’t know and we’re looking into it, and there are some other folks in the state who are looking into it. I think what we do know is that nationally, this really is a big problem and I think Jeff’s case potentially highlights some of the growing problems we’ve seen throughout the United States with excessive bail.
Essentially, imposing high bail on a poor person who’s been charged with a low-level offense is really the same as convicting that person. And this is because through this pre-trial detention, the poor person already serves his sentence before they’ve even been convicted. And this has a really big impact on poor people. Here, Jeff would have stayed in jail until his next court date, which would have been approximately one month. So he would have served 30 days in jail before he had any ability to even contest the charge he was arrested for.
We don’t have hard numbers for here in New Hampshire. Do we have numbers nationally for how often this is happening?
What we do know is according to a report by the National Institute of Corrections, which is an agency within the Department of Justice, an estimated half a million people are in the country’s jails on a given day because they cannot make bail. That’s not broken down by a small amount of bail or a large amount of bail, but that’s a large population.
What do you see as the fundamental argument though against this practice? What are the alternatives?
There are some alternatives. We’ve seen some work in other states addressing different approaches. And here in fact in New Hampshire, the Interbranch Criminal and Juvenile Justice Council, of which the ACLU is a member, has heard about different possible approaches to bail, including a data-driven risk assessment model. Under this approach, the defendant’s risk of being released on bail is examined by a tool constituting a series of questions about the defendant’s history and the charged offense. This is an approach we need to study in New Hampshire.
One alternative as well is eliminating cash bail for non-violent offenses all together. This is an approach that the city of New York is taking. This year, they’re allowing judges to substitute bail for thousands of low-risk defendants. Washington, D.C. as well has a non-financial bail release system. So there are alternatives out there and we’ll assess those approaches.
Is there some kind of data showing if there were no cash bail, does that make it more likely people won’t show up for their hearing?
I don’t think so, and I think when you look at some of the states that have implemented no-cash bail, they’re not seeing necessarily high rates of people not showing up and it really doesn’t have a huge impact. And the risks of having a cash bail system, as we saw in Jeff’s case and other anecdotal cases throughout the country, is really severe. This practice has a real impact on poor people.
Pre-trial detention can cause job losses, it can cause evictions, parents can lose custody of their children, and all of this can happen even when the case is ultimately dropped. That’s actually what happened to Jeff in one of the cases we represented him in out of Nashua where he was arrested and spent 33 days in jail simply for walking in a park. He spent more than a month in jail because he couldn’t post the $100 fine. We got involved in the case and got the criminal charge dismissed. So this really does have huge consequences for poor people throughout the state and the country.
Now, the Department of Justice actually weighed in on this issue just a day after Jeffrey Pendleton’s death. What did it say?
In Jeff’s case, he died one day before the federal Department of Justice issued a memo to all chief justices throughout the country stating “courts must not employ bail practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release.” The federal government has been active in trying to lead the way to address some of the problems we’re seeing with bail.
Was there any reaction here in New Hampshire to that advisory?
I don’t know, but what I do know is that the courts are aware of it and they’re sympathetic to these concerns. So we need to address whether this is a systemic issue in New Hampshire, and whether it’s systemic or not, just try to see whether or not those alternative approaches would work in our state.