Hundreds of thousands of legally innocent people languish in jails on any given day simply because they can’t afford bail. Bail amounts vary widely, with a nationwide median of around $10,000 for felonies (though much higher for serious charges) and less for misdemeanors (in some places such as New York City, typically under $2,000, though much higher in some jurisdictions). But even the lower amounts are more than most people can pay, and many spend time in jail for lack of as little as $500 or even $250. Studies have shown that even at low amounts, most people cannot quickly post bail. They end up staying in jail for days or weeks (and sometimes much longer); for instance, in Philadelphia from 2008 to 2013, nearly 40 percent of those with bail set at $500 or less stayed in jail for at least three days. In these cases, money bail effectively detains people without giving them the rights they could have if they underwent a formal detention hearing.
Bail has essentially created a two-tiered justice system in the US. Many of the nearly half a million unconvicted people confined in jails on any given day are there because they can’t afford to pay bail. As people await court hearings behind bars, sometimes for months or even years, they suffer from inadequate medical care and even dangerous conditions, and many lose their jobs and housing. They also have a higher chance of being convicted than if they hadn’t been assigned bail, as they take plea bargains just to get out of jail, whether or not they actually committed a crime.
They and their families are also targets for the $2 billion-per-year for-profit bond industry, which routinely exploits people — disproportionately people of color — in desperate situations. The system imposes an enormous and unfair burden on people and their families, especially low-income people of color. Udi Ofer, the director of the Campaign for Smart Justice at the American Civil Liberties Union (ACLU), says the money bail system is “one of the most corrupt and broken parts of our justice system.”
In the 1970s and ’80s, fear of rising crime led to the Bail Reform Act of 1984. The act allowed a judge in a federal court to detain someone either for flight risk — that is, if there was convincing evidence that they would abscond if released — or if they were assessed to be a serious threat to public safety. Many states adopted similar statutes in the ’70s and ’80s. A few years later, the Supreme Court in United States v. Salerno affirmed the constitutionality of detaining someone for reasons of public safety, while also making it clear that “in our society liberty is the norm,” and detaining someone prior to trial is the “carefully limited exception.”
Nearly 30 years later, pretrial detainment is not a “carefully limited exception.” Judges routinely assign bail that people can’t afford to pay. Between 1990 and 2009, releases in which courts used money bail in felony cases rose from 37 percent to 61 percent.
A judge setting bail usually takes mere minutes to issue a decision. There’s also evidence that this process is incredibly arbitrary. For example, recent analysis of bail decisions in New York City from FiveThirtyEight shows that the chance of being assigned cash bail varies wildly — between 2 and 26 percent for misdemeanors, and 30 to 69 percent for felonies — depending on which judge happens to be overseeing a court on a given day.
In many places, courts follow bail schedules — amounts that are based on charge — without taking into account details of a person’s case or their ability to pay, and often without defense counsel being present. Nearly 11 million people are admitted to jails across the country each year, many because of their inability to pay bail. (Most people in “jails” are unconvicted, whereas “prisons” are where people serve sentences.)
The experience of jurisdictions that have gotten rid of money bail also shows that releasing many more people doesn’t correlate with a high level of rearrest for violent crimes. Washington, DC, got rid of secured money bail and bolstered pretrial services in 1992; today, it releases 94 percent of those accused of crimes as they await court hearings. Of those people, 88 percent returned for all court appearances last year, and only 2 percent were arrested for a violent crime as they awaited court hearings.
The main risk that reformers tend to worry about is not a rise in crime, but instead, as Human Rights Watch puts it, the risk of replacing “one harmful system with another.” Advocates worry that legislation some states have considered or adopted will have the consequence of giving courts too much leeway in detaining people pretrial, or even encourage them to do so.
One in five people behind bars in this country is unconvicted, and many are there because they cannot pay bail of a few hundred to a few thousand dollars.
In 1964, then-Attorney General Robert F. Kennedy said to Congress, “The rich man and the poor man do not receive equal justice in our courts. And in no area is this more evident than in the matter of bail...This is a cause in which there is great work to be done.”
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