Should The US End The Money Bail System?

40% of New York City Inmates cannot afford their bail. Is it time for the US to ditch a system that seems to be rigged against the poor?

Google recently took a stand against the bail industry when it announced it would stop allowing bail bonds ads to run on its platform. Facebook soon followed suit. While proponents of the bail system argue that bail provides a way out of jail, ensures that defendants appear in court, and protects crime victims, opponents allege that it punishes impoverished defendants before they’re even convicted. Is this practice more harmful than it is helpful?

You’re picked up for a crime you didn’t commit. It’s a petty theft charge. Your bail is set at $1000. No big deal, right? Except you don’t have the money. So you have two options. You could stay in jail awaiting a trial date that might not arrive for months.

Or you could accept a plea deal, pleading guilty to a crime you didn’t commit, and get out. This situation is “coercive,” according to N. Scott Banks, Attorney-in-Chief at the Legal Aid Society of Nassau County, just outside of New York City.

60% of inmates in US jails have not been convicted of any crime. Instead, they are awaiting trial. 75% of these inmates are accused of nonviolent crimes, such as drug offences or property crimes. In New York City, 40% of inmates are in jail because they were unable to pay their bail.

Cash bail has its roots in 11th century Anglo-Saxon law, but high-profile cases like Sandra Bland (who died while in custody after being unable to post bail) and Kalief Browder (who committed suicide after spending time in solitary confinement after being denied bail for allegedly stealing a backpack) have brought the issue to the fore in recent years.

Guilty Until Proven Innocent: Punishing the Indigent

The Eighth Amendment to the United States Constitution states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” In practice, however, what one considers “excessive bail” will undoubtedly vary based on the offence and the financial situation of the accused.

For someone who works a low-wage job in retail or food service, even a small amount of money can prove unaffordable. Many of those forced to stay in jail – because they cannot afford bail – work in industries such as retail and food service. If you don’t show up to work, you’re fired, wreaking further financial havoc on defendants. The Pretrial Justice Institute has launched the #3DaysCount campaign, to raise awareness as to the fact that even three days in jail can have devastating consequences.

The bail system results in “systematic discrimination against the poor,” says Banks.

On May 7, Google announced its intent to ban bail bonds ads on their platform. Citing a study from In the Public Interest, the tech giant argued that the practice disproportionately harms poor communities of colour. The statement reads in part, “We made this decision based on our commitment to protect our users from deceptive or harmful products, but the issue of bail bond reform has drawn support from a wide range of groups and organizations who have shared their work and perspectives with us”

While Banks feels that such a move “borders on First Amendment issues” and feels that such ads should not be restricted, he remains an advocate for bail reform.

There are alternatives to cash bail that have gained traction but have yet to achieve widespread use. In the pretrial services model, currently in place in Washington DC, defendants are interviewed and given a risk assessment that takes into consideration many factors, including their criminal history, drug history, and mental health history. The pretrial services agency then issues a report to the court with their findings, and the judge takes this into account. Those defendants at a low risk are released on their own recognisance with no restrictions, while those with a medium risk are released under certain conditions, such as a requirement to wear an ankle monitor.

This practice of supervised release is common in the juvenile system, which does not use cash bail. In lieu of a bail hearing, juveniles appear before a judge for a detention hearing, where they are either held in custody pending their adjudication hearing or are released to the custody of a guardian and are sometimes to subject to release conditions (such as an ankle monitor).

This model keeps potentially dangerous defendants in custody, and keeps low-risk defendants out of detention. A defendant’s financial situation has no bearing on the outcome. Why hasn’t it been adopted by the adult criminal court?

The Cost of “Failure to Appear”

On the opposite end of the spectrum from the Pretrial Justice Institute and the Legal Aid Society stands Beth Chapman, President of the Professional Bail Agents of the United States. In response to Google’s assertion that the bail industry targets minority communities, she stated, “It’s quite infuriating when they say things like we make our money off the backs of the criminal justice system. Well, so do lawyers, so do social workers, so do…ankle monitoring companies.”

Chapman emphasised, “It is unfortunate that a lot of minority communities are subject to bail bonds more frequently than other communities, but I think that has to do with poverty,” among other factors.

“The bail industry doesn’t target anybody” she said, “We don’t set bail for anyone. We are a user-funded service for those who have found themselves in jail and want to get out”

In an effort to fight against the expansion of pretrial services programs, organisations like the Professional Bail Agents of the US are using multimedia to promote the Citizens’ Right to Know Act of 2018, which would require states to report “The name of each defendant participating in a pretrial release program… Information relating to any prior convictions of each defendant [and] the amount of money allocated for the pretrial services program.”

“You can never entrust this type of risk assessment to an algorithm…,” said Chapman, who worries that such a model takes discretion away from judges and cites Chicago as an example of a crime-ridden city without bail bondsmen, “mom and pop operations” that enforce law and order.

Even if bail reforms are passed, the bail industry will likely not go down without a fight.  Chapman sees her work as a public good. She wants to make sure that the voices of crime victims are not lost in this debate, while emphasising that defendants are “savable, there’s no doubt, but sometimes a person has to hit rock bottom before they can find their way back to the top.”

In Banks’ opinion, the Citizens Right to Know Act is “a solution to a problem that doesn’t exist.” Instead, he “would like to see the federal government come more in line with more progressive movement towards reducing bail, reducing incarceration, needless incarceration…especially for poor Black and brown communities”

Many consider bail to be an American institution, as essential to the functioning of our legal system as the right to a speedy trial. But Americans must take a hard look at the system. Is it really doing what it was established to do? Or does it have negative consequences for the most vulnerable members of society? With the power of the ubiquitous bail bonds industry, rising concerns about the treatment of impoverished defendants, and questions about the overall effectiveness (both financial and otherwise) of the bail system, it is clear that this issue is not going away any time soon.