Volume 3 Number 110
I am indebted to The Huffington Post of July 14, 2016 for much of the material contained in this essay.
Millions of people—actually 2.3 million, are cycled through our jails each year. Most of them are charged with petty offenses. The usual charges are petty offenses like hopping a subway turnstile, smoking a joint, being unruly in a public place, petty theft in a supermarket, etc. These are disproportionately committed by minority citizens who are poor, physically or mentally ill, or suffering from substance abuse. Or at any rate, these are the people most often charged.
At any one time, there are about 500,000 inmates in jail who haven’t been convicted, according to federal data. Many face lesser charges and are neither a threat to public safety nor likely to flee from justice. But because they don’t have money to post bail, they face immediate punishment and exposure to a form of pretrial confinement, all without due process. Critics say bail money violates the constitutional guarantee of equal access to justice, regardless of the individual’s wealth. There is a body of research that suggests bail is an expensive, inefficient tool that only contributes to high incarceration rates, but it remains widespread around the country.
For a minor offense, a no-bail situation can snowball into a life crisis. It is not uncommon for a person to be jailed several weeks until their next judicial hearing because he or she could not make bail, because judges routinely set bails at the initial hearing of a case. This is supposed to guarantee the defendant will appear at the appointed date. Sometimes these bail fees are low, but this can be a fortune to a person of modest means. Those who can’t make bail wind up behind bars.
There is a system of bail bondsmen in this country to help when a person can’t readily come up with the fee. However, bondsmen do not wish to bother with such small amounts– a bail of $2,000 or less. There isn’t enough money in it for them because they will only make 10 percent of the bail amount or a maximum of $200 on such a case. To them, it’s not worth the time and expense involved. So the defendant is caught in a trap of being unable to make bail, and for a petty offense, being jailed for what could be several weeks or months until their next court appearance comes up.
This can lead to a series of things that tear lives apart: a lost job, because he or she is now a no-show; eviction from housing for non-payment of rent; difficulty in keeping a child at home. Many of these people live paycheck-to-paycheck and this interruption destroys what little equilibrium they possess. The problem snowballs. Often these people work in service industries. If they are medical caregivers, a housebound patient depends on them. If they have immigration concerns that make it more difficult to come back to where they were located before their incarceration.
What drives this unfair system is, of course, money. Up until the 1800s in the United States, courts relied on a system of personal surety which allowed the accused to be released without any payment so long as they could find an insurer, someone who would take responsibility for their return for trial. Payment was only required if a defendant didn’t appear. But as the 1900s rolled around, as people became more transient, this system didn’t work anymore. It became more difficult for defendants to find an insurer, so a new system evolved. This required the accused to put up a sum of money in order to be freed pending their appearance. Many jurisdictions operate under ambiguous laws that do not take into account whether the person is responsible and is likely to return.
The use of bail grew, and now it injects a huge influx of cash into our justice system. Today this sprawling industry handles about $14 billion in bond money each year which produces $2 billion in annual revenue. Not only that, but it is estimated that we spend another $9 billion to keep this population incarcerated, according to federal data. “If you keep a low- or medium-risk person in jail pretrial you are destabilizing them,” said Cerise Burdeen, executive director of the Pretrial Justice Institute. She added, “You are taking away the things that made them low-risk to begin with, and that will actually increase their likelihood of committing a crime in the future. So we’re kind of biting off our nose to spite our face.”
Yet with all of this incarceration going on, there was a federal law passed in 1966, the Bail Reform Act. This is supposed to keep indigent defendants out of jail before trial if they can’t pay bail. Years before its passage, Attorney General Robert F. Kennedy said, “One factor determines whether a defendant stays in jail before he comes to trial. That factor is not guilt or innocence. It is not the nature of the crime. It is not the character of the defendant. That factor is simply money.”
That 1966 law protects indigents in federal courts; unfortunately, it does not help the folks who find themselves facing judges in local or state courts. The use of bonds has only surged since the 1990s, according to the Pretrial Justice Institute, with a 50 percent increase seen in both the dollar amounts of the bonds and the number of crimes for which bail is set. This was attributed to the higher level of crimes in the 1990s, and the use of bail to keep defendants locked up prior to trial. This high level of bail setting has persisted, despite the recent drop in crime.
While the mean number of days awaiting trial is 21 days, in some cases defendants are locked up for months. Some defendants plead guilty to an agreement to avoid a sentence, or to end their ordeal after being penalized for time already served. This situation is magnified because jails are often overcrowded and unsanitary. While the defendant walks away free in these situations, it can cost them a conviction for a crime they may not have committed. It has been observed that just 38 percent of defendants who remained in jail pretrial had their cases resolved without a conviction, compared to 88 percent of defendants who made bail. The justice system doesn’t cut equally across racial lines. Judges tend to favor whites over racial minorities in pretrial hearings according to research cited by the Sentencing Project.
But an important insight gleaned from The New York Times of August 15, 2016 puts a different perspective on the whole matter of bail. The article suggested that, “The whole penal system would be overloaded if not for bail. This is the grease that keeps the gears of the overburdened system turning… Currently because of the bail situation only 5 percent of cases go all the way to a trial resolution. If even a small fraction of those defendants asserted their right to a trial, criminal courts would be overwhelmed. By encouraging poor defendants to plead guilty, bail keeps the system afloat.”
It is conjectured that getting rid of the cash bail system would be a good thing precisely because it would overload the court system. Then judges and law enforcement officials would have to rethink the necessity of jailing so many people for petty offenses. Policemen would probably be instructed to act more leniently in these cases and stop putting so many poor people in jeopardy for non-violent or petty crimes. This would reduce the cost of the judicial system for both the courts and the jails.
What can be done to prevent these fundamental injustices of the bail system? Is there a less radical measure than doing away with bail altogether? Reform advocates cite a growing number of jurisdictions that are turning to individualized assessments, considering a defendant’s personal, financial and criminal background in order to inform bail decisions. This creates a risk profile which is used to determine bail amounts as well as those kept behind bars without bail and those who can be released under supervision of pretrial services and who can leave under their own recognizance. Evidence suggests that this approach works, not only limiting the use of bonds to keep communities safe, but does it at a fraction of the cost. Often judges can set alternatives to bail, but they have just become accustomed to this practice. They must be encouraged by judicial reformers to seek out more humane approaches that don’t encroach so heavily on the lives of the accused.
With our jails suffering from so much overcrowding, it can only benefit society to reassess why we jail so many, with such negative personal outcomes for people whose lives are so difficult to start with.
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