On the ground floor of Washington’s busiest courthouse, it is hard to hear the judge over chains and shackles clanking to the floor. But the message resounds: On a typical afternoon the court will release about 90 percent of the people who have been arrested and held overnight in the nation’s capital.
They are released without leaving behind any money — on a promise to return to court and meet conditions such as checking in with a pretrial officer or reporting for drug testing.
This is not how the system works for those charged in almost every other local and state court in the country. But it is how the District has run its rough-and-tumble courthouse for more than two decades.
Nationally, about 47 percent of felony defendants with bonds remain jailed before their cases are heard because they cannot make bail. At the D.C. jail on 19th Street SE, no one is locked up on a criminal charge because of an inability to pay.
“We’ve proven it can work without money, but the whole country continues as if in a trance to do what we know does not work,” said D.C. Superior Court Judge Truman Morrison. The new way of thinking he promotes tracks the federal system, which bars judges from setting financial barriers to keep someone locked up.
Thousands of people across the nation sit in jail — not convicted, but awaiting their day in court — because they cannot afford to post money for release. Others, charged with the same crime but able to pay, go free.
Efforts to eliminate or reduce use of money bonds and fixed bail payments — through legislatures in New Jersey and Colorado, and class-action lawsuits in eight states — have become part of a national movement to overhaul the criminal-justice system because of the impact on poor defendants. Officials in Jackson, Miss., agreed last month to stop using money bail in misdemeanor cases as part of a legal settlement. Several other cities in Mississippi have done the same.
“There is no evidence you need money to get people back to court,” said Morrison, a judge since 1979. “It’s irrational, ineffective, unsafe and profoundly unfair.”
The system in the District has experienced some high-profile lapses.
In late May, police arrested a man in a fatal shooting and said he had bypassed a court-ordered monitoring device that had been attached to his prosthetic leg — which the suspect left at home. The tracker was in place for a previous gun arrest, police said in court files.
Last year, a man released from court on a misdemeanor charge of assaulting a police officer was charged in a fatal stabbing two days later on a Metro train. If convicted, Jasper Spires, 19, faces life in prison.
“It just seems like judicial malfeasance,” said Joseph Sutherland, an uncle of the stabbing victim, 24-year-old Kevin Sutherland. “It led to a direct line to my nephew’s death. . . . This shouldn’t happen.”
Cliff Keenan, head of the city’s pretrial system, said, “we will accept blame and responsibility” when there are failures. But when it comes to human beings, he said, “you can’t stop people from making bad decisions.” In the case involving the prosthetic leg, Keenan said his office is reviewing “human error” by the company that fits GPS devices on defendants.
Keenan’s agency supervises about 14,000 people a year in D.C. Superior and U.S. District courts — a figure that does not include juveniles.
In the past five years, about 90 percent of defendants released were not arrested again before their cases were resolved, according to data collected by the D.C. Pretrial Services Agency. Of the roughly 10 percent who did get in trouble again, the vast majority are not rearrested for violent crimes.
Keenan frequently faces questions from residents who ask why people taken away in handcuffs one day are back in neighborhoods the next.
“The truly dangerous people are being held,” he said. “Most of the time we get it right.”
A push for pretrial justice has gained momentum and attention in part because of recent prominent cases, including the $500,000 bail set for a Baltimore protester after the death of Freddie Gray and the detention of a teenage boy, held at Rikers Island for three years on robbery charges that eventually were dismissed. He killed himself last year, two years after being released.
Separately, civil rights lawsuits, brought by the D.C.-based nonprofit Equal Justice Under the Law, have challenged bail practices as unconstitutional. The Justice Department has signed on in an Alabama case, saying preset bail, without an inquiry into a person’s ability to pay, violates the 14th Amendment’s equal protection and due process clauses.
“It’s movement like we’ve never seen,” said Cherise Fanno Burdeen, executive director of the Pretrial Justice Institute.
But it is a movement that still meets powerful pockets of resistance.
In Maryland, Montgomery County courts use a form of risk assessment, although judges still set bail. Legislation to overhaul the system statewide has never made it out of the House Judiciary Committee in the face of opposition from the bail industry, which says pledging cash or bonds is necessary to pull people back to court.
Advocates who successfully pushed last year to roll back mandatory minimum prison sentences for drug offenders in Maryland have vowed to make pretrial reform their next target.
In 1964, then-Attorney General Robert F. Kennedy decried as unjust a bail system in which wealth — not guilt, innocence or type of crime — was the main factor that determined whether a person was locked up before trial.
Two decades later, a 1987 Supreme Court decision expressly allowed prosecutors in the federal system to detain people without bail before trial when the government could prove the person arrested posed a significant threat.
Building on that ruling, D.C. Council members passed a law in 1991, at the height of the city’s crack wars, that expanded the crimes for which a person could be held before trial.
But the then-head of pretrial services, John A. “Jay” Carver, added a pivotal sentence that prohibited imposing a “financial condition” that a person could not pay — in effect, doing away with the bail-bond business in the District.
“I thought there would be mayhem on the streets, but it wasn’t simply opening up the doors and letting all of these dangerous people go free,” said former D.C. attorney general Bob Spagnoletti, now a criminal-defense lawyer. “The world doesn’t come to an end when all of these people charged with low-level offenses are released.”
Reform advocates say converting to a risk-based system can be less expensive because jails house fewer people. Nationally, the average cost to hold someone in jail before trial is $75 a day, compared with about $7 a day to supervise a person in the community, according to the Pretrial Justice Institute.
When District judges talk about the system, they almost always encounter skepticism about how other jurisdictions could replicate it. Federal prosecutors handle most local criminal cases in the District. The federal government entirely funds the independent pre-trial agency whose $62 million budget pays for about 350 employees and includes a drug-testing lab, treatment services and mental-health and drug courts.
On a typical day, more than a dozen pretrial officers pull together background on what can be more than 100 people prosecutors have decided to “paper,” or charge. The operation runs 24 hours a day, with officers checking criminal records, outstanding warrants and probation violations. Already, most arrested for crimes such as drinking in public or disorderly conduct have paid a small fee to avoid going to court or received a citation to appear later.
Those who remain are locked up nearby.
Pretrial officers jockey for space with defense attorneys to learn more about the people arrested before they see a judge. Defendants in street clothes lean against white cinderblock walls.
Sitting in small booths, officers strain over noise to interview people they call clients: How long have you lived in Washington? Are you married? Children? Are you employed? Are you being treated for mental health or substance abuse?
Seventy factors go into a database that calculates the risk that the person would commit another crime or not return to court.
In all but the most serious cases, the presumption is release.
The court clerk talks quickly, the judge acts fast and in less than five minutes, the decision is made.
About two-thirds of defendants are released with terms that include drug testing, stay-away orders or weekly phone or in-person reporting. About 10 percent get tighter monitoring, such as GPS ankle bracelets and home confinement.
In the highest-risk cases, the recommendation to the court is blunt: There are “no conditions or combination of conditions that can reasonably assure the defendant’s appearance or safety to the community.”
Elsewhere, advocates for reform say, state and county judges often hide behind steep bail to hold someone they merely suspect may be dangerous.
“Here we are transparent,” said D.C. Superior Court Judge Robert E. Morin, who will take over as chief judge in October. “We say that the evidence at this time demonstrates you are dangerous, and therefore you are to be detained. Judges from other jurisdictions who visit are surprised when there is no mention of a money bond.”
On a Friday last year, 85 people were on the lockup list. Courtroom seats filled with friends and relatives waiting for the judge’s decision — in or out.
The clerk called for defendant No. 3. A 24-year-old from Northeast shuffled to face the bench. He was charged with second-degree theft and unlawful entry. Prosecutors did not ask to have him detained.
Judge William W. Nooter admonished the man for failing to regularly check in with pretrial officers as he was required to in a separate pending misdemeanor case.
“You have to report to pretrial if you want to stay on the streets,” Nooter told him. “If you fail to do this, you could end up locked up before your trial.”
The judge ordered the marshals to unlock the man’s chains. The clerk set a new court date. He was free to go.
Peter Hermann contributed to this report.