Quickest Path to Reducing Pretrial Incarceration? Eliminate Money Bail
by Derek Gilna
According to the non-partisan Prison Policy Initiative (PPI), the fastest way to reduce the number of pretrial detainees held in local jails is simple: Eliminate or reduce the use of money bail.
In a money bail system, defendants unable to come up with the required funds to pay their bond amount (or 10% of the bond if they use a bail bondsman) remain in custody until their case reaches its conclusion or is dismissed. Proponents of limiting the use of money bail point to both the unfairness of the current system and its cost.
In a May 2016 report titled “Detaining the Poor: How money bail perpetuates an endless cycle of poverty and jail time,” PPI noted there are 646,000 people held in over 3,000 local jails throughout the U.S. Around 70 percent of those individuals are pretrial detainees who have not been convicted, and therefore are presumed innocent. Holding those people – many of whom are indigent – in custody until they are able to post bail has doubled the jail population in the past two decades.
“We find that most people who are unable to meet bail fall within the poorest third of society,” PPI wrote. Indeed, according to the Bureau of Justice Statistics (BJS), “people in jail had a median annual income of $15,109 prior to their incarceration, which is less than half (48%) of the median for non-incarcerated people of similar ages.”
Bernadette Rabuy, who published a report on the pre-incarceration demographics of state prisoners, said, “I kept hearing that 80% of defendants are indigent, but I was curious if people in local jails are even poorer than people in prison.”
BJS data supports that theory. “The typical detained defendant would need to spend eight months’ income to cover $10,000 in money bail,” stated Dan Kopf, who relied on a BJS dataset when he coauthored a 2015 report, “Prisons of Poverty.”
The Federal Reserve has determined that most people cannot muster $400 if needed in an emergency. According to Rabuy, “If the average American cannot easily come up with $400, it is clear that a system that requires (on average) $10,000 from the poorest members of our society for pretrial release is a system set up to fail.”
In addition to making the criminal justice system fairer, limiting the use of money bail could also save municipalities from wasteful expenditures. In a 2016 study, the Vera Institute of Justice reported that while New Orleans receives $4.5 million in revenue each year from those who post bail, the city pays $6.4 million to incarcerate pretrial detainees who can’t afford to bond out.
“Our system is costly for both defendants and their families who have to pay these costs, [as well as] for taxpayers who have to pay for the cost of incarceration for those unable to pay,” said Mathilde Laisne, a senior program associate at Vera’s New Orleans office and a coauthor of the report.
There is also a growing body of evidence that money spent to detain people before trial is not actually making local communities any safer. The most dangerous individuals – those with connections to well-financed criminal networks – can easily buy their way out of jail, while other, less dangerous defendants languish behind bars. As Chicago Police Superintendent Eddie Johnson noted, people arrested on gun charges in Cook County were six times as likely as shoplifters to post bond.
“The gangs will put their money together because they want that guy out, because he’ll go get that rival gang member that they’re trying to get,” he explained. “So no matter how high we push [the bail amount] up there, they’re going to figure out a way to [pay it and] get this guy out of jail.”
Studies have shown that a money bail system is not necessary to guarantee that defendants charged with minor offenses will appear in court. A 2013 report by the Pretrial Justice Institute found that bonds requiring no money upfront were equally effective as traditional bonds to ensure a defendant’s court appearance. Other studies indicate that mail and phone reminders about court dates can also be effective alternatives.
As a result, the U.S. may be at “an amazing moment with bail,” stated Larry Schwartztol, executive director of the Criminal Justice Policy Program at Harvard Law School. “There is a really extraordinary wave of momentum to change in pretty fundamental ways [how] bail works.”
Schwartztol pointed to the efforts of groups like the Civil Rights Corps, which has been involved in nearly 20 legal challenges in Illinois, Louisiana, Texas, Georgia, Tennessee, Missouri and Massachusetts. Such efforts appear to be bearing fruit.
In Maryland, the Court of Appeals approved a rule that instructs judges and court commissioners not to use bail to ensure public safety – as bail is only supposed to ensure that defendants show up at future court hearings. Defendants considered dangerous can be held without bail, while those not considered dangerous should be released with conditions designed to assure they appear for trial. And when lower courts do set bail, they must take into account the defendant’s ability to pay.
Legislation to change the money bail system has also advanced in Maryland, as well as in Chicago’s Cook County. But the most significant example of bail reform comes from New Jersey, where Governor Chris Christie joined the ACLU to lobby for new bail measures that took effect last year. Christie said he was unconvinced that bail was effective in keeping dangerous defendants off the streets.
Of course the current system isn’t likely to go away immediately. Continuing pressure from lobbyists for the bail bond industry, which relies on the existing bail system for its livelihood, will slow the pace of reforms, said Nancy Fishman with the Vera Institute. Instead of eliminating money bail entirely, jurisdictions may opt to make their bail systems less punitive, she stated.
But change continues to happen, mainly at the local and state levels – so even the Trump administration, with its focus on law and order, is unlikely to slow it down much, according to Professor Schwartztol.
“This is an issue that local jurisdictions and states get to decide, and the momentum that we’re seeing is taking place at that level,” he explained. “So the presidential election does not change that in any direct way.”
Sources: www.prisonpolicy.org, The Baltimore Sun, Christian Science Monitor, www.crimereport.org