The ACLU of Nebraska announced a new prosecutor and court accountability program focused on cash bail reform at a news conference last week.

Over the next two years, ACLU of Nebraska law clerks and volunteers will watch hundreds of hours of court proceedings to ensure that judges are in compliance with state laws that say they must consider a person’s financial ability to pay cash bail, fines or fees. If a person is unable to pay, they have the right to request an alternative, such as payment plans, community service or discharge of fines and fees.

“Freedom should not depend on how much money you have,” said ACLU of Nebraska Legal Director Adam Sipple. “When someone’s ability to pay isn’t appropriately assessed or meaningfully considered, cash bail effectively creates a two-tiered system of justice where people who can afford their release go home while others unnecessarily suffer in jail. That jail stay can cost someone their job and cause other devastating collateral consequences. If we’re going to make sure Nebraskans have equal access to justice, regardless of what they can afford, we need everyone working together.”

Similar court watching programs at other ACLU affiliates have led to ongoing class-action lawsuits, but Sipple said that he hopes to avoid litigation by involving all stakeholders in the criminal legal system, including judges and prosecutors, in ensuring that everyone is treated fairly and equally under current law. Ultimately, Sipple hopes to build public support for doing away with the cash bail system altogether.

Program volunteer Demetrius Gatson, who works in reentry support, said her own lived experience highlights the need for the ACLU program.

“With every hearing for passing a bad check, never once do I remember a judge asking if the bail was something I could afford,” Gatson said. “Never once do I remember them asking about family when I had a young son at home who needed me. I’m committed to breaking the cycle in my own life and others’ lives. One way we can do that is by making sure no one is unnecessarily in jail for months when they should be with their families, at their jobs, and connected with the support they need to get their lives on track.”

State Sen. John Cavanaugh of Omaha said the current cash bail system is weighted against people who are poor.

“A cash bail of $100 for one individual is no different than a million dollar bail if they cannot post it,” Cavanaugh said. “Too often we assign low dollar bails to low risk behavior and higher dollar bails to high risk behavior, but without adequate consideration of the individual’s ability to pay. The result is individuals who present a higher risk to society are being released because they have money while a lower risk individual continues to sit in jail because they do not have 100 bucks. This project by the ACLU will help inform future legislative action to help correct this imbalance.”

State Sen. Matt Hansen of Lincoln agreed that the new project will help inform future efforts.

“The Legislature has made thoughtful progress aimed at minimizing the disparate impact of cash bail in recent years,” Hansen said. “It is important that stakeholders like the ACLU continue to monitor how this progress is implemented day to day in our courts so we can know what next steps to take.”

The launch of the court watching program comes as legislative interim studies begin on poverty and incarceration as well as county fees and fines. A bill that would eliminate cash bail failed to advance out of committee this year, but it could move forward in 2022.

The new court watching program is already underway in Lancaster County, where law clerks and volunteers have begun reviewing video, and will expand to additional jurisdictions in the coming year.

“It is our hope that through this program we will be able to uplift judges who are a good example of how we can move away from using cash bail as nothing more than an instrument for unnecessary incarceration and implement a more just, fairer path for those who are navigating our justice system,” ACLU law clerk Riley Wilson said.