The Problem of Money Bail in the American Justice System

One of the most pressing issues facing the United States today is the vast and complicated problem of prison reform. Not only is this a predicament that is effecting wide swaths of the American public, it is one for which there is atypical and widespread bipartisan support for finding a solution. In December, the Senate passed the First Step Act with overwhelming bipartisan support (George 2018). This bill focused on expanding early release programs and addressing systems regarding the sentencing of non- violent drug offences, such as mandatory minimums (George 2018). Though this aptly named bill is an efficient first step toward greater prison reforms, glaring and detrimental flaws still exist within the American Justice system. One issue that needs immediate and substantial attention are the pretrial and jailing processes. The United States Supreme court has professed the pretrial process to be “perhaps the most critical period of the proceedings (Powell v. Alabama 1935).”

However, this aspect of the prison system draws little legislative attention. Much can be done to make this process not only more humane and just, but more regulated and managed in order to ensure the safety of those arrested and imprisoned. Specific attention should be paid to the bail and jailing systems because the way these institutions currently function present a clear bias against low-income and minority people and are detrimental to both communities and the economy. The current correctional system calls for rehabilitation particularly in the ways in which it disproportionately affects low income people of color and consequently has an acutely negative impact on individuals, their families, and their communities.

There are approximately 3,200 local and county jails throughout the United States (Carson 2016). These jails house people awaiting trial and inmates serving short sentences. American prisons hold almost 2.3 million people. People go to jail, however, 10.6 million times a year (Sawyer, Wagner 2019). This cyclical process of people entering in and out of jail is known as “jail churn.” According to the Vera Institute of Justice, over half of the population of jails is legally presumed innocent. They are confined while awaiting trial, the resolution of their case through a plea bargain, or because they are too poor to post bail. In fact, 99% of the growth in jail populations over the last 15 years has been a result of increases in the pre-trial population (Sawyer, Wagner 2019).

The bail system is intended to allow defendants to await trial outside of jail, while ensuring that they return for trial. Bail is a preset amount of money that, when paid, allows an inmate to await trial outside of jail. If the inmate returns for their trial, their bail is refunded to them. If they fail to return, they forfeit their bail. The money itself is called a bond, and, there are several ways a bond can be paid. When a defendant pays his or her bail amount in full, to be repaid when they return to their trial, this is referred to as a cash bond. Through a deposit bond, a person pays a percentage of their bail amount with the understanding that their failure to appear at the proceedings would make them liable for the full amount. Defendants can also provide a property bond, with the deed to a piece of property of equal value to the bail amount in lieu of cash. Defendants also have the option to hire a bail bondsman. A bail bondsman is a private citizen working for a bail bonding company. The defendant would pay a non-refundable percentage of their bail to the bondsman and the bondsman would post the full bail, accepting the liability if the defendant failed to appear at trial (Neal 2012).

The way the jail and bail systems are constructed and maintained tends to detrimentally and disproportionately affect low income people. A report from the Hamilton project cites that “The median prearrest income of inmates held on bail is about $16,000 a year, in contrast to a median annual income of $33,000 for their non-incarcerated counterparts” (Liu, et al 2018). The average inmate enters jail under significant financial burdens. These burdens are only exacerbated by the high cost of bail. Though the average cost of bail varies greatly between states, the American Economic Review estimates that “less than 50% of inmates are able to post bail even when it is set at $5,000 or less” (Dobbie, et al 2018). Bail is set by judges and varies based on the severity of the crime committed.

A judge may deem a defendant safe to await trial outside of jail, and assign them a relatively inexpensive bail. However, the defendant may not be financially equipped to post even an inexpensive bail and ends up remaining incarcerated even if they were presumed safe to release. This phenomenon can be seen clearly in several New York counties, where 46% of defendants charged with misdemeanors and held on bail for longer than a week had bail set at only $1,000 or less (NYCLU 2018). Within the current system, a defendant’s pretrial incarceration is decided by their wealth, not their threat to the community. An inmate’s bail is set during a bail hearing. Not all states require a court appointed public defender to represent the inmate during this hearing, making it difficult for low-income inmates to defend themselves and speak on their own behalf during these hearings.

The jail and pretrial detention systems have also been proven to possess significant biases against African Americans. African Americans make up only 13 percent of the total U.S. population, but they comprised 38 percent of the U.S. jail population in 2012 (Humes, Jones, Ramirez 2011). Research has shown that the rate of Black/African American people being detained in jail was nearly 5 times higher than white and 3 times higher than Hispanic people (Humes, et al 2011). Not only are African Americans more likely to be detained in jail, they are also more likely to be forced into pretrial detention. This is due to the significant amount of discretion judges are afforded when setting the price of bail. The ability of judges to set bail at whatever amount they choose leaves potential for racial bias. On average, black inmates are assigned bail which is $10,000 greater than that of white inmates for the same crime (Arnold, Dobby, Yang 2018). There is a clear and devastating flaw within the bail system which negatively affects both low-income people and people of color that must be addressed within prison and justice reforms.

The high toll of time spent in jail continues even after release. As one lawyer told the New York Times, “[m]ost of our clients are people who have crawled their way up from poverty or are in the throes of poverty. …Our clients work in service-level positions where if you’re gone for a day, you lose your job. . .People who live in shelters, where if they miss their curfews, they lose their housing” (Pinto 2015). Spending any amount of time in jail can have severely negative effects on people’s lives, especially those earning a low-income. People held in jail can lose their jobs and those who are self employed can have their entire business essentially shut down completely. Even those able to pay bail can find themselves without money for groceries, rent, or other expenses because of the steep price of bail. Studies have shown that the difficulties caused by jail stays creates a higher risk of crime and recidivism (returning to prison) from released inmates (Lowenkamp, et al 2013).

When held two to three days in jail, low-risk defendants are almost 40% more likely to commit new crimes before trial than equivalent defendants held no more than 24 hours. When held eight to fourteen days, low-risk defendants are 51% more likely to commit another crime within two years after completion of their cases than equivalent defendants held no more than 24 hours (Lowenkamp, et al 2013). The negative impact pretrial incarceration has on individuals and their families has been widespread and well documented. The current jail system pretrial procedures effectively push low-risk, presumed innocent defendants into more serious crime and recidivism by unnecessarily placing them into a dire situation.

When addressing greater prison reforms, policymakers must examine pretrial detention, not only as it affects the lives of the people detained, but also its effects on subsequent sentencing. The National Institute of Corrections has found that criminal defendants who are released pending trial earn a roughly 36% increase in the probability of receiving a sentence below the recommended federal sentencing guidelines range (Didwania 2018). It is believed that this phenomenon occurs because non imprisoned defendants are able to point to their time spent awaiting trial and their cooperation in returning for their trial as documentation of their compliance with the law. Judges review these cases through a sympathetic lense, engendering more lenient sentencing. Additionally, juries tend to look more favorably upon defendants dressed nicely in their own clothing, rather than those appearing in prison garb, who appear dangerous and guilty (Neal 2012). The phenomenon of lesser sentences for defendants who are released pretrial should also be considered as it lowers the sheer amount of people who are imprisoned. By reevaluating the bail system and making it easier to obtain pretrial release, more inmates will systematically receive lenient sentencing resulting in fewer people imprisoned at a given time. Pretrial release could also aid in lowering prison populations by decreasing recidivism rates.

The monetary bail system does not even function effectively to prevent trial absences as it is intended. There is no empirical evidence to suggest that posting money bail will incentivize people to return to court for trial (Neal 2012). The average price of monetary bail has been rising consistently, but failure to appear rates have not changed (Neal 2012). Among the most populous cities in the 1960s and 70s, the failure to appear rate was 6-9% (Mahoney 2001). The failure to appear rate in 2006, however, was 22% (Cohen and Kyckelhahn 2006). Clearly, increasing bail amounts has had little to no effect on curbing failure to appear rates, as they were intended. In fact, the process appears to have become a disincentive to those who are expected to appear in court. This failure within the justice system is seriously exacerbated by the pervasiveness of bail bondsmen, which completely undermines the purpose of the bail system. Once a bondsman is paid, the defendant has no incentive to return to jail. This system poses a greater risk to the community because the ability to bring a perpetrator to justice is impaired.

Additionally, high bail amounts are not sufficient means of protecting the community from possibly dangerous defendants. If a judge believes a defendant’s release poses a risk to the community and assigns them a high bail amount, it does not necessarily mean they will be unable to pay it and thus remain in jail. They could possess the financial resources to obtain the bail money or they could pay a percentage to a bail bondsman. The use of cash bail, can actually have a more detrimental effect on the victim of a crime, when the crime involves money taken from the victim. If a defendant uses money that has been stolen to pay a cash bond or bail bondsman, it makes it significantly more difficult for the victim of the theft to reclaim their money after the fact (Neal 2012). The cash bail system does a deleterious job of protecting the community and can actually be more adverse to the victim of a crime than the alleged perpetrator.

Furthermore, the standard bail amount assigned to a crime can vary wildly between states and jurisdictions, and even within them. As the Justice Policy Institute explains, “the use of money bail is arbitrary and not guided by the use of risk assessments or national standards (Neal 2012).” In an effort to create some standardization among bail amounts, several jurisdictions have enacted a system of “bail schedules.” Bail schedules are essentially a minimum bail amount imposed on certain crimes. Bail schedules, however, still fluctuate sharply between jurisdictions and the minimum amounts often far exceed the severity of the charge. A study looking at bail schedules in California found that, for a simple drug possession charge, minimum bail amounts can vary from $5,000 in Sacramento to $25,000 in San Bernardino (Hopper et al 2012). Bail schedules do nothing to aid in the standardization of bail amounts because the amounts remain arbitrary. Bail schedules also remove much judicial discretion from the bail setting process. While this can help prevent discrimination, it removes a judge’s ability to factor in a defendant’s circumstances and financial situation. This disproportionately affects low income people who would be unable to pay a minimum bail amount.

Newer and more innovative methods of pretrial release and money bail alternatives, however, have proven to be successful in preventing rearrests and failures to appear in trial. A program conducted in Santa Cruz found that 92% of defendants released pretrial under supervision were not rearrested (Neal 2012). By simply reminding defendants of their court obligations, jurisdictions can have significantly more success in increasing court appearances.

Many people who miss court dates do so simply because they are unfamiliar with the court process, have a lack of effective transportation, or are just forgetful. These people are not necessarily a risk to public safety, however, many end up in jail for missing their court dates. Jurisdictions that have implemented simple court notifications have had extremely visible success in curbing failure to appear rates. In 2008, Baltimore County organized a full-time staff to a court notification program and improved court appearance rates by 15%. An automated phone call notification system in Miami County in Ohio has reduced failures to appear from about 30 per week to 5. Simple strategies like these can have a massive impact on failure to appear rates and help protect innocent individuals from incurring massive court fees and possible jail time due to circumstances outside of their control.

The money bail system is one that needs to be addressed and rebuilt by American lawmakers. The issue of money bail is large and complex and affects an extremely large amount of Americans every year. The faults that exist within all facets of the money bail system can have extremely damaging and costly effects on low income people and people of color. The faults of the money bail system have been shown to increase crime and recidivism rates among those affected by it. It has been proven to be a greater risk to the community than protector of it and does not succeed in it purpose of incentivising people to appear at their trials. The American justice system is meant to protect innocent people and punish criminals. The money bail system effectively undermines this entire objective and must be abolished.