These NFL stars say it’s time to end cash bail. Here’s why.
Here’s more information on why bail reform is so important (by Jessica Pishko)
Kalief Browder, 16-years-old at the time of his arrest, was held on Rikers Island for three years because he could not afford to post bail. Browder was accused of stealing a backpack. When he refused to plead guilty, and instead continued to profess his innocence, the Bronx prosecutor requested a bail amount that he could not afford. So, Browder ended up in the notorious Rikers Island Correctional Center for three years where he was beaten, abused, and held in solitary confinement. [New Yorker / Jennifer Gonnerman]
Browder’s suicide, two years after his release from Rikers, illustrates the very real and lingering harm that jail time causes even for those who are never convicted of a crime. All this was because Browder — like many people — could not afford to post bail. [The Atlantic / Ta-Nehisi Coates]
More recently, the Bronx District Attorney’s Office fought to keep 18-year-old Pedro Hernandez detained at Rikers Island for two years because he could not pay the $250,000 bail amount imposed for highly questionable charges that were plainly contradicted by eyewitness accounts. [In Justice Today / Nick Malinowski] Hernandez was finally released pending trial through funds raised from a nonprofit. The charges were later dismissed. [Prince Shakur / Teen Vogue]
What Is Bail?
As many as 500,000 people are held around the country in local jails for the inability to pay bail, mostly for low-level offenses. People held on bail have been accused, but not yet convicted, of crimes. They often are locked up only for inability to pay the amount determined by a judge frequently in conjunction with a preset bail schedule, not because of an individual assessment based on risk or threat to public safety. If someone is unable to pay bail, she remains locked up until trial is over or until bail is paid. This can range from days to years.
- More than 60% of jail inmates are jailed pretrial; over 30% cannot afford to post bail. Black and Hispanic defendants are much more likely to be held on bail than white defendants. [Criminal Justice Policy Program / Harvard Law School]
- Frequently, those being held on bail have simply been accused of low-level offenses. 75% of pretrial detainees have been charged only with drug or property crimes. [Criminal Justice Policy Program / Harvard Law School]
- Being jailed pretrial leads to people losing their jobs, not being able to care for their children, and losing contact with loved ones. Holding people in jail who do not pose a significant safety risk also exacerbates overcrowding, creates unsafe conditions, and places a huge financial burden on taxpayers. [The Price of Freedom / Human Rights Watch]
- A study out of Kentucky found that people who are held because they cannot afford bail are 40% more likely to commit another low-level offense. In other words, jailing people who cannot pay bail is criminogenic. [The Hidden Costs of Pretrial Detention]
- People are more likely to be acquitted if they pay bail. Being released before trial is one of the greatest indicators of a not-guilty verdict, suggesting that the system is not punishing the most guilty, but rather the people who cannot afford to pay for their release. [The Atlantic / Bouree Lam] [Pretrial Justice Institute] One study suggests that people are “over three times more likely to be sentenced to prison” and “over four time more likely to be sentenced to jail” than those who are not detained pretrial. [Criminal Justice Policy Program / Harvard Law School]
- A study out of Columbia Law School found “significant evidence of a correlation between pretrial detention and both conviction and recidivism.” [The Heavy Costs of High Bail / Arpit Gupta et al.]
- Incarcerating individuals awaiting trial costs taxpayers $13.6 billion each year. [Prison Policy Initiative] There are effective, low-cost ways of ensuring that defendants appear at trial, including a simple notification system that reminds people of their court dates. [Court Appearance Notification System: Evaluation Highlights / Multnomah County]
A Growing Consensus That America’s Bail System is Broken
A wide range of elected officials, cultural luminaries, criminal justice advocates, fiscal conservatives, and law enforcement organizations agree that the current bail system is broken. Bail reform is possible through legislative and judicial change, and also through policy changes that local prosecutors can make.
The Public wants to see change in the bail system.
- In Arizona, a poll conducted by the state’s Supreme Court found that ⅔ of all asked did not think defendants who do not pose a safety risk and are likely to appear for future court dates should be held in jail for failure to pay bail. [Andrea Kelly / Arizona Public Media]
- Eliminating cash bail has wide support among law enforcement, like Cook County Sheriff Tom Dart and victim’s groups like Marsy’s Law for Illinois. [Reuters / Fiona Ortiz]
- Celebrities like Jay-Z are also advocating against money bail. [Shawn Carter / Time]
- Two recent video clips, one from the John Oliver show, and the other one a mini-documentary from Brave New Films, discuss the problems with the cash bail system. [Last Week Tonight With John Oliver]
Courts are striking down existing bail systems as unconstitutional. Challenges to existing bail systems are pending in local court around the country, in both red and blue states. State Attorneys General and other members of law enforcement are also recognizing that cash bail hurts the poor.
- In April 2017, a federal judge put a pause on Houston’s use of its bail system, which it considered likely to be unconstitutional. [ODonnell v. Harris County] Prior to the 2016 lawsuit being filed, Harris County jailed people for failure to pay bail on misdemeanors, like driving without a license. [Federal Judge Strikes Down Houston-Area Bail System / Courthouse News Service] [New York Times / Michael Hardy] The case is now on appeal before the U.S. Court of Appeals for the Fifth Circuit. Oral arguments were heard in early October 2017.
- In June 2017, a Cook County judge issued an order requiring Chicago judges to consider a defendant’s ability to pay before setting bail. [Richard Oppel / New York Times] [Circuit Court of Cook County]
- Last fall, a federal judge struck down the monetary bail system used against misdemeanor defendants in Calhoun, Georgia as unconstitutional. [Jon Schuppe / NBC] The U.S. Department of Justice under President Obama had filed a brief in the case supporting the elimination of money bail. [Pete Williams / NBC] A similar lawsuit is pending in Alabama. [Amy Yurkanin / AL.com] And lawsuits have been filed in Tennessee, Florida, and New York.
- In February 2017, an appellate court in Maryland limited the use of cash bail and requires the use of other methods before bail is assessed. The State Attorney General had previously issued an advisory statement against cash bail. [Michael Dresser / The Baltimore Sun]
Legislation to eliminate or reduce the use of cash bail are being implemented and debated in many states and in Congress.
- New Jersey passed a law in August of 2014 that replaced the bail system with pretrial risk assessment methods, and its pretrial jail population has dropped 20% since implementation. [Reason / Scott Shackford]
- In 2017, bail reform legislation also passed in Connecticut [Huffington Post / Nick Wing] and New Orleans. [The New Orleans Advocate / Jessica Williams]
- Washington, D.C., has also largely eliminated cash bail, holding only those defendants deemed too dangerous to release. About 90% appear at for their court dates. The Washington Post’s Editorial Board explained that although revamping existing pretrial release systems overly reliant on cash bail made involve upfront costs, it is worthwhile and necessary investment. “In the longer term, however, bail reform will produce substantial savings by reducing incarcerated populations, cutting corrections staffing and eliminating the need to build more jails to house pretrial detainees. Even if the balance sheet tilts toward an additional burden for states and localities, bail reform needs to happen because it’s the right thing to do. It is a disgrace for a civilized society to lock people up for no reason other than they lack the means to go free.” [Editorial Board / Washington Post]
- Other states are considering bills to reduce the use of cash bonds. These bills are heavily opposed by the bail bond industry. A major bail reform effort was thwarted in the California legislature is considering a similar bill that is being opposed by the bail bonds industry that would end the use of bail bond schedules and require pre-trial assessment instead.
- In January 2017, New Mexico voters approved a constitutional amendment that limited the use of cash bail. While the language is limited, advocates are hopeful that it will provide guidance for judges making determinations on pre-trial detention. [Nick Wing / Huffington Post]
- In July 2017, Senators Kamala Harris and Rand Paul introduced legislation to encourage states to reform cash bail systems. [Kamala Harris & Rand Paul / New York Times] [Text of Proposed Bill] [Larry Hannan / In Justice Today]
- In August 2017, the policy making body of the American Bar Association approved a resolution that “[u]rges governments to adopt policies and procedures that favor release on personal recognizance bonds or unsecured bonds, that permit cash bonds or secured bonds only upon a determination by the court that such financial conditions and no other conditions will assure appearance, and that pretrial detention should never occur due solely to an inability to pay.” [American Bar Association]
Prosecutors have the ability to reduce the use of cash bail. While judges are the ultimate gatekeepers, prosecutors play an important role in the process and can advocate for bail reform, screen cases early and establish a presumption of recommending release. [Casey Tolan / Slate]
- Fair and Just Prosecution (FJP), a group that brings together newly elected local prosecutors to promote “a justice system grounded in fairness, equity, compassion, and fiscal responsibility,” urges all prosecutors to “[p]ublicly support the elimination of money bail. DAs should use their bully pulpit to communicate the harms of the money bail system and the need for reform.” [Issues at a Glance: Bail Reform / Fair and Just Prosecution] Miriam Krinsky, Executive Director of FJP, says: “Common sense dictates that people should not be held in jail simply because they cannot afford a monetary payment.” [Miriam Krinsky / USA Today]
- In June 2017, Kim Foxx, the lead prosecutor for Chicago, announced that her office will no longer seek money bail for defendants accused of low level offenses. According to Foxx, “Routinely detaining people accused of low level offenses who have not yet been convicted of anything, simply because they are poor is not only unjust — it undermines the public’s confidence in the fairness of the system.” [Chicago Tribune / Steve Schmadeke]
- Harris County (TX) District Attorney Kim Ogg came down in favor of eliminating bail for people accused of misdemeanors, even writing a brief from her office supporting the use of pre-trial assessments for those accused of low level crimes. [Brief / Kim Ogg’s Office] Over 60 prosecutors from around the country, including Kim Foxx, George Gascon and Mark Gonzalez signed an amicus brief in support of the plaintiffs in the Harris County litigation. [Brief Amici]
- The California Attorney General wrote a brief supporting the elimination of the cash bail system in California. [Brief]
- Larry Krasner, the Democratic candidate for Philadelphia’s District Attorney, has said that he opposes the use of cash bail. [Larry Krasner]
Bail Funds, while not a long-term solution, provide a short-term method to alleviate the burden of excessive bail on the poor. They are non-profit organizations that front bond payments for those who cannot afford them. [Alysia Santo / The Marshall Project]
- On Mother’s Day 2017, several organizations partnered to create a Mama’s Bail Out Day campaign to pay bail for women to see their children. [Human Rights Watch] [No More Money Bail]
- The Bronx Freedom Fund grew out of the local public defender’s office and has bailed out more than 600 people charged with misdemeanors since 2007. Other similar funds have been established in major cities around the country. [Bronx Freedom Fund] [Chicago Community Fund]
- Some places, like Memphis, Tennessee, automatically charge bail funds fines and fees, making bail fund efforts difficult to sustain. [Alysia Santo / The Marshall Project] The Massachusetts bail fund was struggling financially until activists recently pitched in to help revive it. [9.20.2017 Edition / In Justice Today Newsletter]
The Bail Industry Remains The Biggest Obstacle To Reform
In most states reforming bail, the biggest obstacle remains the bail bond industry. For-profit bail bonds are legal in almost every state.
- Money bail has been taken over by private companies that make profits from those who cannot afford it. Many people spent years paying off their bail amounts to private insurers. [Report / Color of Change and ACLU]
- There’s some evidence that the bail bonds industry is intentionally intimidating decision-makers to urge them against bail reform. Dog the Bounty Hunter of television fame has sat in the front row of some cases where judges have struck down monetary bail. [Jazmine Ullola / Lis Angeles Times]
- Bail bond costs are often covered by family members, which puts an additional financial strain on the already-struggling children of the jailed. [Who Pays? / Ella Baker Center]