Reforming the Cash Bail System

It’s 5pm and after a long workday, you decide to go downtown and meet some friends for a drink. You work long hours in a stressful environment and you have no real family network, so you need this time to decompress and find social refuge. On your way, you blow through a red light while going over the speed limit. After a few minutes you notice the flickering of blue and red police car lights. You’re pulled over and approached by an officer who not only informs you of running a light while over the speed limit, but that your car matches a report that came in detailing suspects involved in an open-area drug deal. You are questioned and later handcuffed because the officer claims he has probable cause due to your inconsistent driving record. You are arrested and taken into custody, where you now find yourself in a totally unfamiliar position: behind bars. The entire experience is confusing; you look feverishly for answers. After several hours you are given a $2,500 cash bail. You have no criminal background and no arrest history and yet an accusation is tantamount to guilt by the system. If you want to be released, you’ve got to meet bail. However, like thousands of other people incarcerated but not convicted, you do not possess the means or family network to secure the money for release. You have no option but to wait behind bars and until you can go to trial. But that event will take time. You will miss time from work and may be fired while you await trial. Your meager savings will not pay for a private attorney, and you will likely need that for commissary money while incarcerated. You will be evicted if you do not make rent this month, but you cannot get rent to your landlord anyway while you are incarcerated. Your belongings will likely be thrown away or sold. By the time you leave the local jail, you will have nothing more than the clothes on your back.

You have just become one of the 9/10 inmates identified by the Bureau of Justice Statistics as “stuck in jail” due to an inability to pay an assigned cash bail[1].

Cash bail – effectively a contemporary debtors prison – is a severe financial barrier to many who live on strict, fixed incomes and allows the state to hold the accused for an extended period regardless of their guilt and the outcome of their charges. The prohibitive effect of cash bail exerts a social and economic cost on the accused and moreover, requires the state to spend huge sums of money; money for pre-trial lockup totaling 14 billion dollars[2]. Cash bail has become a major industry, being another part of the prison-industrial complex. As many states move into an era of reform, cash bail has been a target for dismantling and one that many advocates argue fails to earn its merit as either just or effective.

What is “cash bail” and what is it used for?

Dating back to early English common law practices, bail was designated as the judiciary’s surety that an individual accused of a crime would return to appear before a court for judgment. As it goes, the accused is put in temporary holding following an arrest while waiting bail terms, a period that can be anywhere from 72 hours to 45 days (this period is as long as 150 days if you have already been released). Once charged, you may either be released on your own recognizance (ROR), where the court does not require a bail upfront or some form of bail. If assigned a bail, the accused may post the entire amount before the court (e.g. cash bond) or go to bail bonds business. The bail person, as a sort of insurance representative, will post the entire bail amount with a contractual exchange between the defendant that typically amounts to between 10-15% of the total bail (e.g. deposit bond). For the arrested person who is given a $2,500 bail, a $250 non-refundable payment would be required. The bail bonds group acts as a proxy for the court, requiring the individual to meet all the terms of the bond arrangement which includes satisfying all court appearances. If any of the contract is broken, the bonds group has the power to levy huge inhibitory fees or even put out a bounty for the individual to be returned to the court.

In the American legal tradition, state constitutions documented limitations to “excessive” bail amounts. Bail could in theory constitute as a restriction of habeas corpus. While the U.S. Constitution does not offer an explicit right to bail, the Bail Reform Act of 1966 empowered judges access to a bail option when reasonable and when falling within the purview of the courts. Like the era of mass incarceration and the drug war, the genesis of contemporary bail is marked by a shift in industry practices and legal interpretation that saw bail as a method for keeping criminals off the streets and avoid potential harms to the community. The theory goes that bail is enough to deter people from falling to from making choices that would lead them into criminal enterprise. When bail is unable to deter would-be offenders, it there to keep dangerous, homicidal maniacs off the street. But the reality of this looks much different. Many people under pre-trial supervision are indigent, lacking the resources to effectively cover even the percentage required by bail bonds people much less the costs associated with hiring private counsel.

Those who are held during the pre-trail phase are at a notable disadvantage. Research suggests that the accused who are unable to make bail are more likely to be convicted, receive a sentence, and be sentenced to a longer period than those who are released on ROR or bond [3]. People stuck in detainment are less prepared for their case because they are unable to work with counsel and arrange strong evidence in their favor. Additionally, pretrial detention effectively removes the accused from their day-to-day life. This threatens their job because of absence and can cause disruptions in family life, education, and housing stability[4]. Bail also creates disparate impact by disproportionately impacting people of color at higher rates. The rate of African Americans held in pre-trial detention was approximately 5 times that of white defendants[5].

Bail is further problematic because of its potential effect in compelling speech. Because being detained has the same effect as being incarcerated over the long-term, it is not unreasonable to envision a scenario where innocent people “plead out” in order to be released. In many cases, the amount of time an individual can expect to be held in a local facility awaiting trial is longer than the sentence he would receive by accepting a plea bargain from the prosecution. Many people decide to plead out instead of fight for innocence for the practical need to get out of jail. The severe collateral consequences of being in jail (e.g. loss of job, considerations for family) explain the desperation of any standard plea agreement. Couple this with poor access to counsel and system fatigue and estimates suggest that more than 16,000 people could be wrongly convicted annually. Any truth to this is a travesty to objective reality and a miscarriage of justice.

Changes on the Horizon?

The truth is that the bail system is highly ineffective and a poor metric in determining an accused person’s likelihood of satisfying court requirements. The Brennan Center of Justice estimates that nearly 60% of those detained prior to trial are simply there because they are too poor to be bailed out under court-assigned terms [6]. This is not a compelling or powerful argument for bail, nor does it remedy community crime problems. As many cities and states look to reform criminal justice institutions and close budget gaps, the current time is fruitful for the development of pre-trial alternatives. Many non-profit organizations on both a local and national scale are working towards this actively. One such group, the Vera Justice Institute – a group whose mission is centered on improving justice systems that more wholly ensure fairness –developed a screening tool in 2012 that has been used to identify risk of arrestees. For those non-violent, low-risk offenders, release can be recommended. This work, done right in New Orleans, can serve to reduce the social costs of imprisonment and remediate the effects of mass incarceration all while given judges the information to make more informed decisions.

There is reason to be optimistic as major changes take hold across the country. Recently elected Philadelphia District Attorney Larry Krasner and the Philadelphia City Council have successfully introduced an end to cash bail, while states like New Jersey, New York, California, and New Mexico have worked to reduce or end the practice entirely. The Justice and Accountability Center of Louisiana (JAC) applauds these efforts to reduce the addiction to mass incarceration. Non-violent offenders who pose no threat to the community should have the ability to prepare for any accusations they face while avoiding the deleterious collateral damages associated with pre-trial detainment. If cash bail offers no effective route in reducing crime or the rate at which defendants satisfy court requirements, it should be reformed or discontinued entirely.

[1] https://www.bjs.gov/content/pub/pdf/fdluc06.pdf

[2] http://www.safetyandjusticechallenge.org/wp-content/uploads/2015/05/The-Price-of-Jails-report.pdf

[3] Marian R. Williams, “The Effects of Pretrial Detention on Imprisonment Decisions,” Criminal Justice Review, 28(2):299‐316

[4] http://www.justice.gov/ag/rfkspeeches/1964/08‐04‐1964.pdf

[5] http://www.justicepolicy.org/uploads/justicepolicy/documents/bailfail_executive_summary.pdf

[6] https://www.brennancenter.org/sites/default/files/publications/Racial%20Disparities%20Report%20062515.pdf