Prosecutors in Orange and Osceola counties will no longer ask judges to force those accused of low-level offenses to post bail, as part of a reform State Attorney Aramis Ayala said would end a “poverty penalty” that poor defendants cannot afford.
Ayala’s office announced the policy change Wednesday afternoon. She was not available to answer questions about the new policy, spokeswoman Eryka Washington said.
“Economic bias has no place in our justice system,” Ayala said in a statement. “By primarily relying on money, our bail system has created a poverty penalty that unjustifiably discriminates against those without resources to pay. Our focus must be on public safety, not on wealth.”
The policy identified nine charges for which it would apply, including driving without a license or vehicle registration; low-level drug crimes, such as possession of drug paraphernalia or fewer than 20 grams of marijuana; as well as disorderly intoxication, panhandling and loitering.
The policy will go into effect June 1.
“Florida Statutes make it clear that bail is reserved for two instances — when public safety is jeopardized, and when there is a risk of flight,” the new policy reads. “… Not all people who are arrested fall into these two categories. If an individual is not a threat to the community, and there is no indication he or she will not appear at future court dates, then bail is not only unnecessary, it is contrary to Florida law.”
After people are arrested, they typically face a judge who decides whether to set a bail amount. That’s when prosecutors and defense attorneys step in, arguing for higher or lower amounts, depending on the details of the case and the defendant’s prior history and financial means, among other factors.
Prosecutors are typically on the side calling for a higher amount. Under Ayala’s new policy, in many cases they would instead ask for the defendant to be released without having to post any financial stake.
Ayala’s decision, which only affects defendants in Orange and Osceola counties, comes as some states have implemented similar policies in recent years.
“There is a national movement toward nonmonetary bond,” Orange-Osceola Chief Judge Frederick Lauten said in a statement distributed by Ayala’s office. “One of the issues with monetary release is it benefits the wealthy while it is an impediment to people with lesser means.”
In New Jersey, which largely eliminated cash bail, the number of people who remained in jail until trial fell 20 percent in 2017, according to a report by the state’s courts system. However, the change has prompted a funding shortfall, the report said.
In Maryland, the state’s highest court ruled in February of 2017 that defendants should not be held because they cannot afford bail. During the next 11 months, the share of people in jail because they could not make bail fell from 40 percent to 20 percent — but the percentage held without the option of posting bail rose from 7.5 percent to 20 percent.
“We should not, as a society, be keeping people behind bars simply because they’re poor and can’t afford bail,” said Aubrey Jewett, a University of Central Florida political scientist. “And, of course, we have to use common sense, but for people who are being charged with low-level nonviolent offenses … there really is no public purpose served by locking them up.”
Jewett said there are other possible benefits. Holding people in jail is costly, he said, and many lose their jobs because they are missing work.
However, he also noted that Ayala wound up rescinding her first major change after taking office: her announcement in March 2017 that her office would not seek the death penalty for anyone.
She altered course after losing a Florida Supreme Court battle against Gov. Rick Scott, who took 29 murder cases away from her office by executive order because of the policy. Ayala has since created a review board to decide when to seek capital punishment.
“The last time she made a major announcement, about the death penalty, all heck broke loose,” Jewett said.
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