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Criminal Justice Advocates Say New Law Undermines Georgia’s Efforts at Bail Reform

The law, known as SB 402, eliminates the use of signature bonds for a number of felonies, putting poor people who might not be able to afford cash bail at a disadvantage.

Photo illustration by Kat Wawrykow. Photo from Getty Images.

A new Georgia law that requires people facing certain felony charges to either pay bail or remain behind bars is an affront to recent efforts to reform the state’s cash bail system, criminal justice advocates say.

“Detention should not turn on whether you can afford to pay [cash] bond,” said Marissa Dodson, public policy director for the Southern Center for Human Rights. It’s a stance that an increasing number of elected officials nationwide, including Atlanta Mayor Keisha Lance Bottoms and former Georgia Governor Nathan Deal, have taken measures to correct. 

The new law, however, known as Senate Bill 402, eliminates the use of signature bonds (also known as release on recognizance) for a number of felony charges. These charges include murder, felony murder, rape, aggravated assault, robbery (armed and otherwise), driving under the influence, and bail jumping. Under a signature bond, a person need not scrape together money in exchange for pretrial release. Instead, they sign a promise to return to court for trial. If they do not, they face financial consequences. The bill also prohibits people who are charged with any of the listed offenses from being given a signature bond so that they can enter a pretrial release program or a pretrial release and diversion program. A judge can still order the person’s participation in such a program if they can afford to post bail.

“This will impact primarily poor people and individuals who are marginalized,” Azadeh Shahshahani, legal and advocacy director of Project South, told The Appeal, noting that those who can afford bail can still be released pretrial. “All of this would be true in normal times, but we are not in ‘normal’ times. We’re in the midst of a pandemic when leadership around the country is trying to come up with various ways to let people out.” 

Across the country, 74 percent of people in jails have not been convicted and are simply incarcerated awaiting their day in court. In many states, those who cannot afford to pay the full bail amount can hire the services of a bail bonds company, in which a person (or their family) pays a percentage to a bail bond agent, who then covers the full amount. But unlike posting bond directly with the court, those who use bail bond agents do not get their money back.

In public forums over the past year, police and prosecutors in Georgia have warned residents that judges’ leniency caused a “revolving door” for people who go on to commit further violence and crime and encouraged residents to organize against judges’ ability to release people on their own recognizance. News stories have highlighted people with lengthy arrest records who were released on signature bonds and then arrested for new offenses. 

Senator Randy Robertson told The Appeal that he introduced SB 402 after what he called “a pattern” in which people charged with violent offenses were released on signature bonds and were arrested again for new offenses, often violent ones. 

“The legislation took the fraudulent language away where there was a monetary amount announced, but no surety required, and limited the ability of those charged with violent crimes—such as murder, rape, child molestation, things of that nature—from being released without having to put up anything,” Robertson said. Judges, he continued, could decide to set bond amounts for as little as $1 for people charged with violent offenses, but people would be required to pay something. He emphasized that the elimination of the signature bond only applies to those charged with certain violent offenses as well as DUI and habitual offender offenses. “For a lot of nonviolent offenders, there are still a lot of opportunities to get out [of jail],” he added.

Dodson scoffs at the idea that judges will set bond amounts for $1 or that requiring people to pay to secure pretrial release would make them take the threat of incarceration more seriously. Moreover, she notes that people who are detained pretrial are more likely to be convicted and face long-term incarceration 

Both Dodson and Shahshahani emphasize that people charged with the offenses listed in the bill can still be released on cash bond if they can afford to pay it. “If this was about public safety, we wouldn’t talk about requiring them to pay money,” Dodson said.  

At the same time, Dodson acknowledges that the list of charges covered by the law are those that are most likely to be perceived as threatening or scary. That, coupled with the ongoing COVID-19 pandemic, has made educating the public about the ill effects of the law difficult. 

Being incarcerated for months if not years while awaiting trial can wreak lasting damage, Dodson said. For instance, Georgia allows prosecutors to try children as young as 13 as adults if they are charged with murder, rape, voluntary manslaughter, aggravated sexual battery, aggravated child molestation, and robbery with a firearm. The state’s party-to-crime law also allows prosecutors to charge people, regardless of age, even if they did not directly commit the alleged crime. 

Eliminating signature bonds removes the judge’s ability to consider a person’s age, alleged involvement, culpability, and family ties that ensure they stay in the community and return to court. Instead of a signature bond, judges can only issue a cash bond, which could result in children as young as 13 languishing in jail if parents or guardians cannot afford to pay. 

For adults who cannot afford bail, whether charged with a violent felony or a DUI, staying in jail for a prolonged period would most likely result in losing employment, and jeopardize housing and custody of any children.  

Advocates aren’t the only ones concerned about the ramifications of SB 402. The Council of Municipal Court Judges notes that the bill introduces new language—an “unsecured judicial release”—that does not exist anywhere else in the state’s codes. 

In a letter to Representative Chuck Efstration, chairperson of the House Judiciary Non-Civil Committee, the council raised concerns that this new language could potentially lead to a number of problems, such as preventing judges from adding conditions for release, such as a no-contact order or a release to a treatment facility. “An unsecured judicial release is not a bond, and therefore could not be revoked like a bond,” cautioned Chief Judge Willie C. Weaver, the council’s president, adding that the unforeseen consequences of the language change “could be catastrophic.” 

Furthermore, the letter noted that many coronavirus outbreaks have occurred in jails and prisons—and the virus does not discriminate between those who are awaiting trial and those who are convicted. “The middle of a pandemic seems to be an injudicious time to introduce or pass legislation which would have any effect of increasing the jail population in the state,” the letter concludes. Last week, the Marietta Daily Journal noted an increase in COVID-19 cases in Fulton County that halted all movements to court and to the prison system. 

Nonetheless, SB 402 passed both the Senate and House. On Aug. 3, Governor Brian Kemp signed the bill, which will go into effect Jan. 1, 2021. 

“When the country as a whole is moving in a positive direction towards shutting down jails, shutting down policing, shutting down prisons and coming up with alternative mechanisms to ensure public safety and ensure human dignity, it’s abominable that Georgia is moving in the opposite direction,” Shahshahani said.

“We will continue to challenge wealth-based detention at the state and local levels in Georgia and work with lawmakers to introduce legislation to reduce wealth-based detention,” Dodson said. “The depths of [a person’s] pocket shouldn’t be driving the narrative.”