Of the more than 2.3 million people locked up in the United States at any given time, around 646,000 are held in county jails. Of that population, seven in ten are pretrial detainees who have not yet been found guilty, and according to a May 2016 report by the Prison Policy Initiative (PPI), most remain in jail because they cannot afford to make bond.
Money bail, generally abandoned in the federal system in favor of signature or security bonds, is a method by which the courts can motivate defendants to appear at their hearings. However, for the poor, money bail is effectively a jail sentence of indeterminate length that ends only when the case concludes or is dismissed. Bail serves another, more nefarious purpose – the longer people stay in jail because they can’t afford to make bond, the more likely they are to accept a plea deal to resolve their charges. This helps explain why prosecutors often argue for high bond amounts and why the vast majority of criminal cases end in plea bargains.
Numerous studies have shown that the weight of the criminal justice system falls most heavily upon the poor, minorities and the mentally ill – groups that tend to have such low incomes that any additional expense, such as having to make bond, can cost them their jobs, their homes and perhaps even their families. For these defendants, the constitutional guarantee of “innocent until proven guilty” rings especially hollow.
According to the Bureau of Justice Statistics, in 2015 the median pre-arrest income of people held in jail was only $14,000 – less than half that of non-incarcerated people within the same age category. Jail detainees are thus the most affected by the money bail system but the least able to make bond.
The PPI report asks whether the purpose of the criminal justice system is to reduce crime or to generate revenue for local governments. Research has shown that “an additional 25% percent of defendants could be released pretrial without any increases to pretrial crime,” according to PPI. Further, the fact that the percentage of minorities in jail populations far exceeds their share of the general population gives even more weight to the push to eliminate money bail.
The White House has condemned bail bonds as “a crude way to screen pretrial defendants for their risk of flight or to the community.” Some states use non-financial forms of pretrial release, as well as unsecured bonds in which money is only due and payable if the defendant does not appear at his or her court date.
PPI also recommended that local governments “stop locking people up for failure to pay fines and fees.” This practice became more well known to the general public following protests in Ferguson, Missouri, which highlighted how the town was balancing its budget with fines levied on poor residents – many of whom were at risk of arrest and ending up in jail due to outstanding warrants. According to one news report, in 2013 Ferguson had an average of three warrants per household, mostly for traffic violations and minor offenses.
The easiest way to eliminate problems with the bail bond industry would be to “reduce the number of arrests that lead to jail bookings through increased use of citations and diversion programs,” according to PPI. The report also advocated an increase in funding for indigent criminal defense.
Besides the United States, only one other country has a commercial bail bond system – the Philippines. The District of Columbia and at least four states – Illinois, Kentucky, Oregon and Wisconsin – have abolished money bail, while other states have imposed limitations on the bail bond industry, including New Jersey, Colorado, Hawaii, Delaware, West Virginia and Virginia. In all other states, poor defendants remain in jail while those who can afford to make bond are released – which clearly demonstrates that you get only as much justice as you can afford.
Sources: “Detaining the Poor,” Prison Policy Initiative (May 10, 2016); www.prisonpolicy.org; The New York Times; The Marshall Project
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