The Money Bail system is an aspect of the criminal justice system that is rarely the target of debate about justice reform, but its use has wide reaching implications for the poor and people of color. Bail is the system set up in criminal court that governs defendants pre-trial. It determines whether to hold people or release them with the primary goal of ensuring a defendant attends all court dates. It relies heavily on money. Bail is determined by a judge by taking into account factors including flight risk, crime accused of, etc. Money bail is supposed to serve as collateral so people have an incentive to attend court dates and adhere to the terms of bail. Once proceedings are over, the money is fully returned. This system should work in theory, but, unfortunately, the reality is much more complicated, and much darker. There are nearly 450,000 people currently sitting in jail awaiting trial, a significant portion because they could not afford to post bail.
The most egregious case of bail abuse is that of Kalief Browder. Kalief Browder was a black man who at 16 years of age was arrested for allegedly stealing a backpack. His bail was set at three thousand dollars, an amount neither he nor his family could afford to pay. Determined to obtain justice, Browder refused to admit to a crime he did not commit. So, he was incarcerated awaiting trial for nearly three years until the charges were finally dismissed. Due to the trauma caused by his incarceration, Kalief Browder hung himself in 2015. Browder is not an isolated incident, the system takes advantage of thousands of individuals a year simply because they are poor. Individuals and families are unable to pay bail, even if it is a relatively low amount. Prosecutors systematically use bail to get plea deals and harsher sentences. America needs a better system.
Bail is supposedly collateral so individuals show up to court. In theory this is a good idea, but the reality is more often than not it has limited impact on compliance with terms of release. The Justice Policy Institute finds, “the ability to pay money bail is neither an indicator of a person’s guilt nor an indicator of risk in release.” There are other factors such as community ties, history of criminal activity, or substance abuse which are better determinants. The Constitution of the United States explains that citizens are innocent until proven guilty, but for those who are poor and charged with a crime they effectively pay a poverty tax. If an individual is wealthy they can pay the bail themselves, or they have a network of individuals who can loan them the money. At the end of the trial, all the money will be returned. If someone is poor, and can’t manage the full bail amount they have two options. They can pay a 10 percent fee to a private bail company, who will put up a bond on their behalf, or they can pay 1 percent down and the remaining balance will be a loan with the highest federally allowed interest rate. This is a tax on the poor. They are in essence fined for being charged with a crime, guilty or not. The level of money is not the issue, it is the simple fact that it is a money system at all. Even when the amount is under five hundred dollars, only 15 percent of defendants are able to come up with the money to make bail.
Norman Reimer, executive director of the National Association for Criminal Defense Lawyers, put it bluntly: “Bail is used as ransom to extract a guilty plea. Fact.” It is used as a tool to overwhelmingly leverage poor black and Latino people to confess to crimes they did not commit. Scott Hechinger, a public defender, found clients held in jail without the ability to pay bail pled guilty 92 percent of the time versus 40 percent if the defendant was released pre-trial. Tim Murray of the Pretrial Justice Initiative stated, “Studies going back as far as the 1960s show that defendants who are held pretrial are offered harsher plea offers than similarly situated defendants who are out on bail.” The time someone spends in jail is uniquely tied to their socio-economic status. Even without a plea deal, pretrial detention has strong outcomes on sentencing. If they are sentenced to jail, those who are detained for the entire pretrial period are given sentences three times as harsh. This is systematic wealth discrimination something we should not allow to persist in our justice system.
This country supposedly espouses, “equality before the law,” but we have an arbitrary pre-trial detention system based on an individual’s wealth. This problem is an affront to our legal system, and one that is rarely mentioned. Even if an individual is ultimately declared innocent they can lose income, their job or housing all because of their lower wealth status. This is not to say inherently having the justice system detain those awaiting trial is immoral, but when the sole factor between someone’s freedom or imprisonment is how much money they have in the bank, that is class discrimination. For individuals and families that are already economically burdened this is too high a price to pay for freedom, a price no individual should have to pay.
We have to reform our bail system so it is fairer to the poor and so we can uphold ideals of justice and equality. There is important work being done on this issue, we just need to get behind it. Senator Kamala Harris (D) of California and Senator Rand Paul (R) of Kentucky have proposed the Pretrial Integrity and Safety Act of 2017, which would move states towards “individualized, pretrial assessments with risk-based decision making.” This means individuals could be released on their own recognizance based on a high probability they will comply with the terms of their release and show up to all court dates. This bill gives states grants to implement statewide reforms. Not only would this bill increase equality, but it reduce the cost of holding people on pretrial detention which costs nearly fourteen billion dollars a year. The bill would also require information to be collected and reported on implemented practices in order to examine trends, and effectiveness and to further improve the bail process. It is time for America to fully uphold equality of the law regardless of income status and reform this nation’s bail system.