Portland Area Public Defenders Say The Cash Bail System Is Broken. They're Working To Change It.

Public defense attorneys throughout the Portland metro area began a coordinated effort Monday in advocating against cash bail for their clients, in collaboration with a national legal nonprofit.

In Oregon, when a person is arrested for a crime, depending on the charges, a judge can set a monetary bail amount ⁠— 10% of which must be paid for a defendant to be released from jail before court hearings or an eventual trial.

Some argue that the system is unjust because it keeps nonviolent offenders in jail simply because they cannot afford to pay their bail.

“There is a presumption of innocence in the United States,” said Carl Macpherson, executive director of Metropolitan Public Defender, “and if people are truly presumed innocent, then how can you justify detaining our clients pretrial absent due process?”

Metropolitan Public Defender (MPD) works with roughly 13,500 people each year who are unable to hire their own attorneys in Multnomah and Washington counties. It’s the largest single provider of public defense services in the state, Macpherson said.

“Our clients are disproportionately impacted by a cash bail system because our clients often do not have the ability to post their cash bail amount,” Macpherson said. “So it is extremely important and something we need to argue against and fight against.”

MPD is working with Civil Rights Corps, a national nonprofit group, to challenge cash bail, or as it’s more frequently referred to in Oregon — security release.

Civil Rights Corps has been filing lawsuits and appeals to challenge the cash bail system throughout the country, in places like Texas, Illinois and Louisiana.

“Cash bail is a human rights crisis,” Tara Mikkilineni, a senior attorney with Civil Rights Corps, said. “When you’re detained pretrial, your outcomes are worse on a number of dimensions. Part of that is because you’re in jail and you’ve been cut off from your community, your family,” she said.

Because people can’t afford to get out of jail, they typically lose their jobs and some become homeless, Mikkilineni said.

“There are all kinds of underlying fundamental social factors that would explain why being jailed pre-trial puts you in a much worse-off position than someone who is released pretrial, even if you’re talking about two people with the same profile, charged with the same offense,” she said. “The effect of cash bail essentially is two people that look the same on paper, one will suffer worse outcomes and be treated very differently simply because they can’t afford to pay their bail.”

In Oregon, unlike many other states, instead of having to pay their entire bail amount, defendants are required to post that 10% deposit to be released from jail. If they fail to appear in court, they could be responsible for their entire bail amount.

When the case is closed, or exonerated, the defendant will be refunded their 10% deposit, minus court fees and other obligations such as child support fees.

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“What the judges are doing is they’re just setting bond amounts,” Mikkilineni said. “Generally, the judges may operate off of a bail schedule or they might just make up bond amounts that are consistent with what people are charged with.”

Typically, a suspect is put into police custody first — with a monetary bail amount to be determined, then is later given the chance to have a release hearing with a judge for a chance to look into factors determining potential releases, such as criminal history and personal background.

That release discussion should take place before someone is put into custody, Mikkilineni said.

“This bond-setting is just being substituted by judges instead of a full, robust, constitutional inquiry that you’re entitled to before you’re detained,” she said.

Keith Rogers, executive director of Multnomah Defenders, Inc. (MDI) — another public defense office in the region — said he supports Civil Rights Corps and Metropolitan Public Defender’s work, though he hasn't been directly involved in the planning.

“MDI is supportive of any efforts to reform the cash bail system to better recognize the presumption of innocence to which every defendant is entitled,” Rogers told OPB. “Our attorneys have always advocated that our clients be released from custody with the least onerous conditions of release; so, we won’t necessarily be doing anything different.

“I think what you will see, though, is more of an attempt by all defense attorneys in Multnomah County, including MDI attorneys, to identify the issue more precisely in court in anticipation of possible litigation.”

Though technically on opposing sides, area prosecutors may not necessarily be butting heads with public defenders over this fight.

Washington County District Attorney Kevin Barton said he agrees that Oregon’s criminal justice system can be changed for the better.

“I’m a big proponent of, we always need to be looking at ways to improve or evolve the system,” he said.

“Anytime that we tie what we do in the justice system to money, I think that should make people feel a little bit uncomfortable,” Barton said. “I don’t think money should play a determining role in how someone is treated in the justice system.”

The challenge in adequately advocating for every person’s release without bail, he said, comes down to resources.

Washington County has roughly half the number of judges that Multnomah County does — even though it has about three-fourths of Multnomah County’s population.

Barton also said that bail is not meant to be used as punishment, but as a motivating factor.

“It’s saying, ‘Give up this set amount of money — something of value to you — and in exchange, on your release, make sure you’re going to court and not harming the victims of your crimes, or you won’t get all of this money back,’” he said.

There may be other motivators outside of cash bail to achieve this, Barton said, but to look into that, there needs to be more support and resources in place.

As far as whether Barton will be challenging defendants getting released without posting bail, he said it would be a case-by-case basis.

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Multnomah County District Attorney Rod Underhill declined to comment on public defenders’ actions or his thoughts on the cash bail system.

Macpherson with Metropolitan Public Defender agrees that the road to eliminating cash bail requires more than just local action.

“Ultimately, I think the way to abolish cash bail is legislative,” he said. “There has to be a legislative fix.”

“We’re trying to seek really fundamental changes to our criminal-legal system,” Mikkilineni said. “These cases that go kind of one step at a time to dismantle the system are really important and I think right now, we’re seeing the success of these cases in jurisdictions all over the country.”