The protester had been locked up in the Pinellas County Jail for four months.
He’d been arrested during the tumultuous first week of the George Floyd protests. Police accused him of throwing rocks at the St. Petersburg Police Department and threatening to shoot an officer. They alleged he was a leader of a group that “numbered in the dozens.” His public defender said he was innocent.
Other protesters arrested in those early weeks had long since been released, many with charges dropped. But Alfred Lenard Nelson remained imprisoned in September, accused of three felonies. His bail had been set at $30,000.
Nelson, 43, worked at KFC and earned a little more than $1,000 per month before the pandemic. He had no savings. A relative offered to spot him $200, enough to pay a bail-bondsman for bail set at $2,000, but that was all the support he could count on.
Like many people who enter U.S. jails each day, Nelson was poor and had a criminal record, mostly from his youth. A bail set that high ensured he would sit in jail until he pled guilty or the case went to trial — which could be more than a year away.
But his case fell to a public defender named Catherine Henry. She looked at his file and thought she saw a way out.
A “frustrating” process
In courtrooms across America, judges with large caseloads move through initial bail hearings with conveyor-belt speed. Their decisions, often based on a bond schedule and made in a matter of minutes, affect whether someone gets released or stays locked up while fighting to prove their innocence.
The system has been a frequent target of social justice reformers and legal scholars, who say cash bail criminalizes poverty, bloats jail populations and disproportionately affects people of color like Nelson, who is Black.
“People who have money will get released, and people who don’t have money don’t get released — and there’s no other distinction between their cases,” said Kenneth Nunn, a University of Florida law professor.
It’s a major gateway to mass incarceration, he said. The U.S. incarceration rate has increased by more than 500 percent since 1970, with Blacks and Hispanics disproportionately represented.
On any given day in 2020, the year of the COVID-19 crisis, about half a million people were held in American jails ahead of trial. About two-thirds faced non-violent property, drug or public order charges, according to an analysis by the Prison Policy Initiative. In Florida, about 40 percent of the jail population is Black — or more than twice the census Black population.
Those stuck in jail, though presumed innocent, face a severe disadvantage in the system, Nunn said. They have more barriers to meet with their lawyers and gather evidence, and face more pressure to accept a plea deal. Multiple studies have found people who couldn’t make bail were more likely to plead guilty than those with similar cases who were released. More than 90 percent of convictions result from plea deals.
Beyond that, even a short jail stay can have destabilizing effects on an individual and spill over into communities — jobs and homes lost, relationships broken.
The longer someone stays in jail, the more devastating the consequences. Many bail reformers point to Kalief Browder, a 16-year-old accused of stealing a backpack in New York City, who was held for three years awaiting trial on $3,000 bail his family couldn’t afford. Prosecutors eventually dropped the charges. Browder, who had frequently been held in solitary confinement, took his own life soon after his release.
Across the country, there’s been a slow but growing recognition that the system is not working — and efforts to find solutions.
New Jersey began using a risk-assessment tool in 2017 for deciding when to detain someone ahead of trial, which nearly eliminated the use of cash bail and greatly lowered the jail population. In 2018, New York passed a law to restrict cash bail to violent felonies. This year, Illinois became the first state to pass legislation that would abolish cash bail. It will end there in 2023.
In Florida, there has been no legislative effort. When Catherine Henry joined the 6th Circuit public defender’s office four years ago, she accepted the fast pace of bail hearings as the “way things were done.”
“It’s kind of bing-bang-bam — this is what you’re charged with, this is the bond, do you want a lawyer? You’ve got one. Next,” she said. Judges didn’t have time to look at the individual facts of each case. “It’s just a very mechanical process.”
Her clients, mostly repeat offenders, were used to the system, too. They usually didn’t argue with the judge’s decision.
Once in a while, Henry got a client who didn’t understand the rules. They were innocent, they said, and they had jobs they were in danger of losing or children who needed them.
“It’s discouraging, frustrating,” she said. “You have to explain to them — well, we can file this motion, we can make this argument, and we can set your case for trial. But you’re going to be in jail during that time.”
Then, in 2019, the American Civil Liberties Union visited her office.
“How can we challenge it?”
Benjamin Stevenson, an ACLU attorney based in Pensacola, had been thinking about cash bail in Florida — poring over case law and consulting legal scholars — for nearly 10 years.
So many things about the system didn’t make sense, he said. Someone could be held on a bail of more than a million dollars yet be so destitute, they were represented by a public defender.
Posting monetary bail is meant to ensure that a defendant returns for court, a practice dating back centuries. If they don’t, they forfeit the money to the government or become indebted to a bail-bondsman. But did that logic even make sense?
“If you are released, then you go on a crime spree, you still get your money back, as long as you come to court,” he said. “How, then, does monetary bail do anything to protect the community?”
In Washington, D.C., which does not use money bail, the vast majority of people arrested are released, and more than 85 percent return to court without that incentive.
The disconnect outraged Stevenson and kept him thinking — “How could this be constitutional? How can we challenge it?”
Since around 2017, he and a colleague, Jacqueline Azis, have been working to push an argument in Florida courtrooms that takes aim at unaffordable bail. They believed it could win at higher-level courts and influence the system to operate more fairly.
Lawyers had long tried to argue that high bail for indigent clients was excessive. But judges usually deemed the bail amount reasonable based on the alleged crime, prior history and bond schedule.
The ACLU lawyers focused on a different argument. A bail amount could be reasonable for the charge, they said, but unaffordable for certain defendants and effectively keep them incarcerated. That, they said, violates the U.S. Constitution’s due process clause against “the arbitrary deprivation of life, liberty or property.”
If prosecutors want to hold a person in jail before trial or taking a plea deal, they can ask a judge for pretrial detention. That triggers a hearing in which the judge considers the state’s evidence for whether a person is a flight risk or a danger to the community.
But those hearings rarely happen. Prosecutors say they don’t have the time or resources to prepare pretrial detention hearings for every defendant they want to keep in jail, and the requirements for those hearings are narrow. So they ask for money bail that is unattainably high to achieve the same ends.
“It’s a less honest way of unlawfully denying bail altogether,” Stevenson said. Prosecutors and judges could use less-restrictive methods to promote court appearances, he said, like bond contracts that don’t require collateral, ankle monitors or text-message reminders.
If the ACLU could get a decision from an appellate court, the lawyers believed it would force judges to make the connection between unaffordable bail and unconstitutional detention when setting bail amounts.
In the fall of 2019, Stevenson and Azis traveled across the state to share their strategy with public defenders. They hoped to identify cases they could appeal.
Watching the ACLU’s presentation was a revelation for Henry. She thought of clients who’d struggled over whether to stay in jail to fight their case or accept a plea deal and get out.
She always advised against it. Pleading guilty meant losing a chance at acquittal or getting charges dropped.
But many clients had jobs and families and rent to pay. Prosecutors had the leverage — they could lower or withdraw charges in exchange for a plea deal. Her tools to help them felt limited. Many took the deal.
Now, here was a convincing strategy from the ACLU, she thought. She felt inspired.
Working slowly within the system
At that time, Henry was handling felony cases in Judge Chris Helinger’s court.
Helinger had spent 25 years as an assistant public defender before her election to the bench in 2006.
She had a reputation for being exceedingly thorough but also humane, a judge who “looks more at the bigger picture,” Henry said. In the past, Helinger has advocated for expanding mental health and addiction resources.
But when Henry tried to bring the ACLU’s motion into the courtroom, the judge shut her down.
“I’m not going to deal with that argument,” Helinger replied when Henry began trying to argue that bail was unaffordable for a man charged with a felony for drug possession. “Because if that were the standard, everybody would be out of jail. So no. It’s reasonable. Thank you.”
Henry knew when to shut her mouth in court.
“Understood,” she replied.
But she kept at it, filing the ACLU’s motion for clients, many arrested for crimes of the desperate and addicted — like stealing a $179 bluetooth speaker from Walmart. Some were picked up at vacant houses or bus stops. One woman was stopped by officers because she ran from their police car. She was found with synthetic marijuana and heroin.
Henry had to make clear to Helinger that she was making a new argument.
At Nelson’s hearing to reduce bail in September, Henry established his resources. Did he have any savings? she asked. Any car, house or boat that could be used for collateral?
No, he replied. No.
Had he ever failed to appear at court? “I wouldn’t dare,” he said.
The judge asked about his ties to the community. Nelson had lived in Pinellas County since 1990 and had been staying at a Salvation Army shelter before his arrest. If he got released, he said, he would live with family and his boss at KFC would welcome him back.
The judge called relatives to confirm, but when she heard his sister was living with her mother in public housing, she grew skeptical it was really an option.
The prosecutor argued the judge could take into account the evidence the state had gathered against Nelson, what it said were several days of threats, and recited his criminal record: The most recent was a misdemeanor for marijuana possession in 2013. Before that, Nelson had a string of convictions from the 1990s that included thefts, robbery with a firearm, aggravated assault and arson.
Helinger sided with the prosecution. “His record would indicate at some point in his life, Mr. Nelson was dangerous.” She believed he might pose a risk to law enforcement.
“It would make a difference to me if he really had a place to live,” she said.
Nelson remained in jail.
A higher court weighs in
This was the kind of case the ACLU lawyers were looking for.
They joined with Henry and brought a petition to the Second District Court of Appeals, asking for Nelson’s pretrial release.
They also asked the court for sweeping judgments, among them affirming that that if the state wants to deprive someone of their liberty, it must present a higher standard of proof and show that nothing but monetary bail would achieve the same ends.
The state attorney general didn’t argue directly against it but said it is not a court’s role to determine whether a bail is “affordable.” All of the factors in Nelson’s case — the alleged offenses, the weight of the evidence, his lack of housing and prior criminal record — could be used to set a reasonable bail amount.
On Nov. 20, the decision came back. The Court of Appeals said the ACLU had demonstrated that Nelson’s bail resulted in pretrial detention and was “tantamount to no bail at all.” “Within three days, the trial court shall hold a hearing to determine reasonable conditions of release,” it ordered.
The next week, Nelson was released with an ankle monitor on a $2,000 bail. Nearly six months had passed since he was locked up. His trial is set for June. (Nelson declined to comment for this story because of his open case.)
The ACLU lawyers saw it as a small victory. But the court didn’t connect the case to the broader constitutional issues. “They didn’t give clear guidance,” Stevenson said.
He and Azis keep looking for the right case. He pointed to California, where the state Supreme Court in March ruled on a similar argument, ending cash bail under most circumstances if a defendant can’t afford to pay.
“We’re still looking for a bullseye.”
“Far from solving our problem”
Hillsborough State Attorney Andrew Warren has been outspoken about the inequities he sees in the system and has taken steps to limit cash bail.
“Every day across the state of Florida, we violate the law by using cash bail as a shortcut, rather than going through a process to determine what the least restrictive conditions are,” he said in an interview with the Tampa Bay Times.
His office created diversion programs for first-time offenders that keep them out of jail and now instructs prosecutors not to request cash bail for non-violent misdemeanors. He also has supported a community bail fund run by Morgan & Morgan law firm.
Yet his prosecutors sometimes still seek high cash bail, particularly for violent charges. A pretrial detention motion needs to show beyond a reasonable doubt that someone is a danger to the community or a flight risk. That isn’t always realistic when the court handles approximately 150 first appearance cases a day, often handled within four hours, he said.
“In cases where we think that somebody qualifies to be detained because they’re a threat to safety, sometimes we just ask for high bail — because we know that’s going to shortcut the detention hearing, and actually hold the person,” he said.
There’s a huge resource issue to “doing this the right way,” Warren said. It would require more first appearance courts, more judges with the time to do individualized analyses and more time for his prosecutors to prepare motions.
“The goal is straightforward. We don’t want to discriminate against people based on how much money you have — but how do you actually achieve that goal?” he said. “The solutions that we put in place are huge steps forward to minimize wealth-based discrimination, but they are far from solving our problem.”
Kendall Davidson, the assistant state attorney at the Sixth Circuit, said prosecutors in his office typically oppose reducing bail when the defendant has a prior record of violence, witness tampering or failing to appear in court or where a person’s situation wouldn’t fit the definition of pretrial detention.
He said the ACLU had “put a light” on some cases from his office, but the pandemic had already prompted a wider effort to minimize the jail population.
Officers exercised discretion in who they arrested, and prosecutors and public defenders worked together to review bails, he said. Technology — ankle monitors and court hearings held on Zoom — were used on a wider scale.
The average daily population of the Pinellas County Jail fell to 2,370 during the pandemic, down from the usual average of 2,945. But by fall, Henry said, things reverted to the status quo.
The jail population ticked back up, reaching 2,727 in January 2021.
Davidson said he had concerns with a larger push to rein in cash bail.
There is no clear data on the relationship between a bail amount and getting someone to return to court. But he pointed to the case of a Largo man arrested on child pornography charges.
Prosecutors from his office saw him as a flight risk, because the penalties for a conviction are so high and he was not a U.S. citizen. But as a first-time offender with no prior record, he did not fit under the legal statute for pretrial detention. After the ACLU appealed his high bail, the district court agreed it was unaffordable.
The man was released and detained briefly by immigration authorities. After, he left town. “We can’t get him to court to prosecute him,” Davidson said, “and he’s kind of just been out there.”
“A new day and age about bonds.”
The decision on Nelson’s case seemed to have an effect in the courtroom, Henry said.
After, when she picked up the case file of a person with an unaffordable bail, she spoke with the prosecutor prior to the hearing to reduce the bond. If it was a minor case — like a homeless man accused of stealing two packages of meat from Publix — they usually would not fight it. Then Judge Helinger reduced the bail amount, often to zero.
Henry also noticed the judge took time to engage in the unaffordable bail argument.
In January, Helinger oversaw a hearing for a Wisconsin man arrested for methamphetamine possession. He had a history that included failing to appear for court dates and a felony conviction for a robbery that left a victim with facial injuries.
Helinger weighed releasing him with an ankle monitor. The prosecutor opposed it. “This guy has zero ties to the community, he has no job, he has no family or friends here, and he has failed to appear on cases on multiple occasions.”
Helinger considered that even if the man had no fixed address, his monitor could be set for Pinellas County. And the judge went back to re-read two prior cases the ACLU had argued in higher courts.
“We’re in a new day and age about bonds,” Helinger remarked as she examined the options.
Ultimately, she denied the motion. She agreed that the bail was unaffordable and constituted pretrial detention but did not agree the state needed to file a separate motion to keep him in jail.
“I think it’s a smear on the integrity of the judicial process … that, you know, you can fail to appear as many times as you want with whatever, with a serious record nine years ago, and because you can’t post bail, you get out.”
The Times reached out to Helinger to ask about the unaffordable bail argument, but she declined to comment.
“While the judge may have strong opinions about this, she cannot speak publicly about such matters as that would be unethical,” said a spokesperson.
For Henry, the judge’s willingness to consider the argument in the Wisconsin man’s case represented a step forward. “We’re now diving a little bit deeper,” she said. “Let’s look at the individual.”
Last month, she left the public defender’s office to start her own practice. She will no longer represent indigent clients, so will be less likely to file unaffordable bail motions.
But other public defenders continue to file them, and the ACLU keeps looking for a bullseye.
The Foundation for a Healthy St. Petersburg provides partial funding for Times stories on equity. It does not select story topics and is not involved in the reporting or editing.