- Associated Press - Thursday, March 16, 2017

LINCOLN, Neb. (AP) - Judges should take defendants’ ability to pay into account when they set bail or impose punishments for unpaid fines, two Nebraska senators told a legislative committee Thursday.

Setting lower bail amounts or no bail for low-income defendants advances the principles of justice and saves counties from paying to jail people who have not even committed crimes that come with jail sentences, said Sen. Adam Morfeld of Lincoln. A measure he sponsored would require courts to do all they can to avoid pretrial incarceration and waive fees for supervised release if defendants can’t pay.

“This is smart fiscal policy and good government policy to make sure those who are in jail awaiting trial are supposed to be there and not just unable to pay,” Morfeld said.

Bail is now being imposed reflexively in nearly every case, said American Civil Liberties Union of Nebraska legal director Amy Miller. A study the Nebraska ACLU did of the state’s four largest counties found the average incarcerated pretrial defendant in those counties spends 55 days in jail before his or her case is heard, and many are charged with minor crimes such as shoplifting.

Being released on bail typically requires defendants or someone near them to pay a percentage of the bond amount, and they’ll get 90 percent of that deposit back after their court date. But for many, paying $50 can be just as difficult as paying $10,000, Lancaster County Public Defender Joe Nigro said.

Spending even one night in jail can dramatically change a person’s life, Nigro said, as missing one day of work could cause a defendant to lose his or her job and being away from home could result in child care costs.

“Our current bond system criminalizes and punishes poverty,” he said. “The fact that this person can pay $500 doesn’t mean they’re less of a danger to the community or less of a flight risk. It just means they can come up with $500.”

A second measure sponsored by Sen. Matt Hansen of Lincoln would require courts to find whether a defendant who hasn’t paid a fine is financially able to pay. If the defendant can’t pay the fine, the court could then allow him or her to pay in installments or perform community service in lieu of payment, instead of being sentenced to jail time.

The measure also would protect defendants from losing their driver’s licenses if they are unable to pay traffic tickets. If people choose to “sit out” their fines in jail, it would increase the amount they earn from $90 to $150 a day.

The two bills are bookends to what happens to low-income people in the Nebraska justice system, Miller said. She said judges already have discretion on whether to impose fines or court costs, and they should take into account whether a defendant can’t pay.

“We have situations where judges are imposing court costs but everybody knows you can’t get blood from a stone,” she said.

No one testified against either bill.

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Follow Julia Shumway on Twitter at https://Twitter.com/JMShumway

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