Georgia Governor Signs Law to Increase Number of Bail Restricted Offenses

When judges are assessing bail in Georgia, they already have a list of crimes where judges have to require some security.  This is what Governor Kemp refers to as “bail restricted offenses,” meaning that judges are disallowed from handing this particular group of the most violent defendants get-out-of-jail free cards.  This is due to legislation having become law a few years ago, S.B. 402, which made a list of the most serious crimes in Georgia that the legislature thought were too serious to trust a simple promise to appear in court and serve the sentence upon conviction.

Governor Kemp on Wednesday signed Senate Bill 63, a bill that expanded the number of “bail restricted offenses” on Georgia’s statutory list.  Among the charges added to the list were things like racketeering, sex trafficking and animal cruelty.  A full list is here: Senate Bill 63.

The Governor praised the bill in the bill signing ceremony on May 1:

“This bill carries out important bail reforms that will ensure dangerous individuals cannot walk our streets and commit further crimes.”

The ACLU, on the other hand, did not like the bill, issuing what sounds like a boiler-plate press release threating litigation: “We are very disappointed that Gov. Kemp has sacrificed the good of Georgia for political gain. The ACLU of Georgia will challenge SB 63 in the courts to stop it from going into effect.”  Strangely, the ACLU did not file suit when the original list was created, so we question as whether the outrage of the ACLU is based on the merits or itself is a question of “political gain.”  We also wonder how a bill that that deals with a small component of pretrial justice which is then a small component of the entire criminal justice system can “sacrifice the good of Georgia.” The ACLU also called the bill “cruel, costly, and counterproductive.”

In reality, the good of Georgia was not “sacrificed” because judges still have discretion to release pretty much any defendant they want to release if the situation warrants because there is no restriction on how much security must be imposed.  For example, requiring security could be requiring the posting of five cents.  Judges nationally have dodged these requirements by imposing a $1 bond, thus allowing defendants to get out.  So, it does not require a large bond that keeps defendants in jail.  Instead, what it really does, which we have seen a lot of lately, is prohibit the automatic free release by judicial edict of these particular defendants.  It forces judges look at them, evaluate them, and take into account that the legislature has said they don’t think these folks are candidates for get-out-of-jail free cards.  The other reality is that the vast majority (90%) of defendants do not post their own bail.  The requirement of some security is then the requirement of third-party involvement and incentives, which can only be a good thing to increase appearance rates and decrease new crimes while on bail.  Further, the Georgia legislature is not expanding preventative detention or supervision policies, instead relying on the system of bail to perform as it should.  In other words, Georgia is taking what is a fairly modest approach to this problem.

The first get out of jail free card in the Queen’s lottery of the fifteenth century is probably more akin to what the ACLU actually wanted from this bill, which provided that not only do you get out of jail free but are also excused the underlying crimes.  The Georgia Legislature, however, appears to be going in the opposite direction along with the Governor’s support.

Governor Kemp has made clear that all three branches of Government are the backstop against violent and repeat defendants walking out of jail without having to have them or a third-party put up anything to guarantee their release in court.  Other states have tried to copy this, but clearly Georgia is in the lead.  We commend Governor Kemp for his leadership on this issue.