Correction: In the interest of accuracy in our reporting, and after consultation with the Pretrial Services Agency for the District of Columbia, two corrections to the previous reporting are offered. First, the original report stated that the District of Columbia had an 80 percent release rate for non-felony arrestees. The District of Columbia actually has a non-financial bail release rate of 85 to 90 percent for both misdemeanor and felony-charged defendants. Second, the article identified D.C.’s non-financial bail release program as “pretrial counseling”; it is officially known as “pretrial supervision.”
Former U.S. Attorney General Robert Kennedy once said: “What has been demonstrated here is that usually only one factor determines whether a defendant stays in jail before he comes to trial. That factor is not guilt or innocence. It is not the nature of the crime. It is not the character of the defendant. That factor is, simply, money. How much money does the defendant have?”
In the United States, bail — or the promise to report to court for trial and sentencing after being arraigned through the staking of property or a monetary value — traditionally imposed a different weight if one is poor than it did if one was of substance. The inability to meet a costly bond could be life-destroying. “There are hundreds, perhaps thousands, of illustrations of how the bail system has inflicted arbitrary cruelty:” President Lyndon Johnson remarked during the signing ceremony of the 1966 Bail Reform Act, which established the right to an affordable bail for most offenses. The Bail Reform Act has been amended and rendered mostly inert in following administrations.
“A man was jailed on a serious charge brought last Christmas Eve. He could not afford bail, so he spent 101 days in jail until he could get a hearing. Then the complainant admitted that the charge that he had made was false,” the former president presented as one example.
In other examples presented by Johnson, “a man could not raise $300 for bail. He spent 54 days in jail waiting trial for a traffic offense for which he could have been sentenced to no more than 5 days. A man spent 2 months in jail before being acquitted. In that period, he lost his job, he lost his car, he lost his family — it was split up. He did not find another job, following that, for 4 months.”
As Johnson explained in further remarks, the bail system is designed to allow those with resources to “buy his freedom,” while those who can’t afford the price must linger in jail. Bail is not punishment but a motivation to reappear in court — what this creates is a wealth-based de facto imprisonment regime ignorant of a person’s actual guilt.
As reported in the 2010 Human Rights Watch report “The Price of Freedom: Bail and Pretrial Detention of Low Income Nonfelony Defendants in New York City,” among 2008 arrestees held for bail set at $1,000 or less, 87 percent were incarcerated for failure to pay their bonds, spending, on average, 16 days in detention for mostly nonviolent minor offenses — like turnstile jumping, smoking marijuana in public and small-quantity drug possession. As reported by the Christian Science Monitor, of the approximately 500,000 individuals awaiting trial throughout the United States, roughly 80 percent are in detention due to a failure to make bail.
When taken in consideration that most of the nation’s poor prisoners are Black, this presents a true problem to the health and stability of an entire population.
Unfairness of bail administration in the United States
In the United States, there are roughly 15,000 bail bond agents, representing a $14-billion-per-annum industry. These bond agents, which provide surety — or third-party payment and responsibility — services for low flight-risk arrestees who cannot afford to pay their bail, in many cases offer the only possibility of avoiding long pretrial detentions. As the court system is increasingly taking longer and longer to discharge cases due to shrinking budgets and a rollback on available resources, the possibility of a lengthy pretrial detention only increases, inviting the risk of detainees losing jobs, missing social and familial obligations and incurring social stigma.
This is complicated in part due to the fact that a higher standard for bail has been imposed extralegally. Most states have laws that inherited the Bail Reform Act’s sense of fairness in bail assignment. The American Bar Association recognizes that “bail is not a fine. It is not supposed to be used as punishment. The purpose of bail is simply to ensure that defendants will appear for trial and all pretrial hearings for which they must be present.”
In that sense, most states have defaults that allow defendants of nonviolent crimes to be released into their own recognizance while waiting for trial on the weight of their promise to report back to the court when called. As failure to appear is an arrestable offense, the law upholds that the arraigning judge must have reason to grant bail, instead of automatically assigning it.
“[The] ability to pay money bail is neither an indicator of a defendant’s guilt nor an indicator of risk in release,” reads a Justice Policy Institute report titled “Bail Fail: Why the U.S. Should End the Practice of Using Money for Bail.” “The focus on money alone as a mechanism for pretrial release means people often are not properly screened for more rational measures of public safety risk: their propensity to flee before their court date or their risk of causing public harm. Meanwhile, those too poor to pay a money bail remain in jail regardless of their risk level or presumed innocence. Evidence suggests that up to 25 percent more people could be safely released from U.S. jails while awaiting trial if the proper procedures are put in place, including valid risk assessments and appropriate community supervision.”
Incentives in granting bail
Despite this, bails have been on the rise over the last couple of decades — rising from $25,400 to $55,500 on average from 1992 to 2006, adjusted for inflation. Lobbyists from the bail bondsman industry, the private prison industry and model legislation from the American Legislative Exchange Council have all pushed for bail increases.
The reason for this is twofold. First, the increased bail creates opportunity for bail bondsmen — who post 10 percent of an arrestee’s bail in surety, but charge 10 to 15 percent of the bail amount to the arrestee to pay for the service. This fee is non-refundable. So, say a person has a $5,000 bail. The bondsman posts a $500 bond, but charges the arrestee $750. As most arrestees show up for their court dates, this represents easy money for the bondsman. In the rare event, however, that someone jumped bail, this creates opportunities for bounty hunters.
Due to this, individuals with small bail amounts — $1,000 or less — are usually ignored by bondsmen, as the expected profit is too low to make the effort worth their time. “The idea that somebody goes and sits in Rikers Island [jail in New York City] and endures all of the hardship of that simply because they don’t have $500 or $1,000 is truly offensive and serves no public purpose,” said Jamie Fellner of Human Rights Watch. Due to the court backlog, cases can take as much as a year to be discharged in New York City.
Nationwide, the pretrial holding of non-violent offenders costs nearly $9 billion. As denoted by U.S. Attorney General Eric Holder, most of those being held are nonviolent and a “disproportionate number of them are poor.” “Almost all of these individuals could be released and supervised in their communities,” said Holder.
Due to the fact that these bondsmen fees are not refundable, this represents a loss of capital to the most underfunded and financially deprived communities. Under normal bail conditions, the bond is refundable after legal proceedings have concluded. Through the bondsmen system, this granting of surety represents large quantities of funds leaving low-income communities permanently.
Not everyone sees commercial bail bondsmen as a problem, though. “Leave it to government to think that even though we offer a free guarantee to the appearance of the defendant in court, they can do it cheaper,” said Scott Hall, president of Professional Bail Agents of the United States, identifying his industry as “glorified insurance salesman.” “We’re a jobs creation program that saves taxpayer dollars creating small businesses where they have an incentive to protect the community by guaranteeing court appearance. And that sounds like a good thing.”
Bail as a plea-bargaining tool
Second and most critically, the heightened bail has created a situation that makes more people subject to forced plea bargaining. As reported by the Justice Policy Institute,
“People detained due to money bail are put under greater pressure to enter a plea bargain, which has become the de facto standard in resolving more than 95 percent of cases each year … Prosecutors can and often do ask judges for pretrial detention as leverage in plea-bargaining discussions with people of limited financial resources. People with children at home, a job or housing at stake, or a desire to avoid the hard conditions of jail could be and have been coerced into entering a guilty plea to avoid pretrial detention, particularly if the time they have already spent will count toward the prospective sentence.”
“These people have families,” said Robin Steinberg, executive director of the Bronx Defenders, a nonprofit that offers legal services in the Bronx. “They have children they need to care for. They have jobs that they’re going to lose if they don’t show up for work. It doesn’t matter whether they’re innocent — there’s a whole range of subsequent damage to their lives and the lives of people close to them if they’re held on bail.”
“It happens all the time,” Steinberg continued, reflecting on the high number of defendants that accept plea bargains. “We see clients at arraignment not wanting to plea, saying they want to fight their case. Then they hear the bail that the prosecutor is going to ask for, and they’ll turn to their defense lawyer and say, ‘I’ll take the plea.’”
A Criminal Justice Agency analysis found that 51 percent of those released at arraignment on non-felony convictions were ultimately convicted. This rate shot up to 78 percent who remained in jail at some point through their case procession and 92 percent for those that remained in jail throughout the course and resolution of their cases. “It’s like a law of physics,” said David Feige, author of “Indefensible: One Lawyer’s Journey Into the Inferno of American Justice,” to the Village Voice. “A person incarcerated tends to stay incarcerated. A person at liberty tends to stay at liberty. When you’re out, you’re negotiating from a position of power; you’re much less likely to take a plea that puts you back in jail. When you’re in, it’s just the opposite.”
“Ultimately, the justification for bail is to provide an incentive for a defendant to return to court to face trial by imposing a monetary penalty if he doesn’t,” said Page Croyder, a former Baltimore city prosecutor. “In a bail bonds system, once the bondsman is paid, the defendant no longer has any incentive to return to court, because he will not be getting any money back if he shows up for court, unlike if he posted bail himself. So the justification for bail is undermined by the bail bonds system. No bail will ensure that a defendant won’t commit another crime while waiting for trial, and that, to me, is the crux of the decision of whether or not to release a defendant. Is it a public safety risk to release this individual? The overall amount of bail is irrelevant to this decision. It is only relevant to the decision as to how much incentive this defendant needs to return for trial.”
This is reflected in the fact that for all misdemeanor convictions, 99.6 percent came from a guilty plea. “Bail is the tool that gets those results,” said Feige. “It’s not the legal purpose of bail, but to put it in pharmaceutical terms, it’s an off-label use.”
The bail system, as it is defined now, represents a profit motive in the administration of justice. The concept of a for-profit bail bondsmen industry — in which a stranger can charge an unreasonable fee in order to ensure a legally innocent arrestee does not have to sit in detention for an extended period of time — has been rejected in Illinois, Kentucky, Oregon and Wisconsin. In case studies such as one in Washington, D.C. — where pretrial counseling and risk-assessment has led to a situation in which 80 percent of all non-felony arrestees are released on nonfinancial bond options, only 5 percent are released on financial bail and 88 percent of all pretrial services participants appear in court as scheduled without re-arrest — a case for the discontinuing of financial bails and, by extension commercial bondsmen, can be made.
Ultimately, justice should not be a matter of wealth. Everyone deserves fair treatment and equal access under the law.