Poverty’s Punishment: America’s Oppressive Bail Regime

(Photo: Flickr/Matthias Müller)

In 2010, 16-year-old Kalief Browder was arrested for allegedly stealing a backpack. He could not afford to post bail and spent nearly three years on Rikers Island, one of the country’s worst correctional facilities. Mr. Browder spent two of these years in solitary confinement. He repeatedly tried to take his life. In 2013, the prosecutor’s office dropped the charges and released him. Two years later, he committed suicide.

The Browder tragedy captured widespread public attention. Mayor Bill de Blasio, Supreme Court Justice Anthony Kennedy, and others weighed in on this miscarriage of justice. In October, rapper Jay Z announced his plans for a film about Browder’s life. Ava DuVernay’s new mass incarceration documentary 13th, discusses Browder’s case and includes surveilliance video that shows Browder being beaten by inmates and correctional officers. One week after the film’s release, Kalief’s mother Venida, an outspoken criminal justice reform advocate, died from a heart attack, or in the words of her lawyer, “a broken heart.”

The Browders’ deaths demonstrate how incarceration affects not only the offender but loved ones and the wider community. Trying to obtain money for bail and failing to do so can wreak havoc on people who are already marginalized by the criminal justice system. Bail reform should be a major criminal justice policy goal, but last week’s Republican sweep of Congress, the presidency, and some state houses means that reforms may be in limbo.

However, the need to make changes in the current system is acute.The inability to generate money for bail can result in long detentions and make plea bargains tempting irrespective of whether the accused is innocent. Detentions can lead to the loss of income; public benefits; a home; and custody of one’s children (an acute problem for single black mothers)—all for being detained, not convicted.

Pretrial detention varies by jurisdiction in the United States, but there are some similarities depending on the seriousness of a crime. An accused person can be released on her recognizance: She pays no money, but promises to appear in court, and sometimes agrees to adhere to certain requirements, such as staying away from certain people or submitting to drug testing. Another option is pretrial supervision, which requires a person to report to an agency that keeps her under a curfew, electronic monitoring, or another form of surveillance during the pretrial period. Yet 60 percent of the people in state jails have not been convicted of anything; some are flight risks or threats, but others simply cannot afford bail.

But more likely, she may have to pay bail in cash to ensure that she shows up for her trial. Generally, courts deny bail when a person is a flight risk or poses a threat to the community. Roughly two-thirds of America’s counties use “bail schedules” that link the amount a person must pay to the severity of the crime committed. In Los Angeles, a person accused of making criminal threats must pay a bail amount of $50,000.

Bail determinations should consider individual cases, but these schedules sometimes default to a predetermined amount. Being employed or having family nearby may help lower that amount; having a criminal history or outstanding warrants might increase it. If she pays, she gets released and receives her money back when she goes to court; if she misses her court date, she loses the money.

A person who does not have the money can look to the multibillion dollar U.S. bail industry. Bail bond agents post bail in exchange for a fee—typically around 10 percent of the bail amount—along with some type of collateral such as a house, jewelry, rugs, or computers. This practice is illegal everywhere else in the world except the Philippines. Yet 50 percent of Americans have trouble getting $400 to pay for any sort of emergency—and that amount is hardly enough to post bail for misdemeanor and felony charges in most jurisdictions. Compared with whites, blacks and Latinos are twice as likely to be detained for nonviolent drug arrests. They also face consistently higher bail amounts and are less likely to be able to post bail.

There are strong relationships between being detained in jail before trial and pleading guilty, receiving a longer sentence, and recidivism. Shima Baughman, a University of Utah law professor and a national expert on bail tells The American Prospect, “Every defense attorney you will speak to will tell you that in today’s plea bargain world, a case is won and lost at the bail decision, when an individual gets released or remains in custody.”

The inability to pay bail is one cause of jailhouse deaths. The tragic death of Sandra Bland illustrates is a case in point: Her bail was set at $5,000, but neither she nor her family could afford to pay the 10 percent bond ($500), which was one of the factors that kept her in jail, where she later died. Since Bland’s 2015 death, an estimated 800 people have died in jails; 305 of them died within a week of being arrested.

Bail regimes vary by state, which makes comprehensive reform difficult. Two popular alternatives—risk assessment tools and electronic monitoring—are gaining traction across the country. The use of risk assessment tools rests on the belief that computer algorithms avoid the biases that sway human decision-makers. In San Francisco, judges use such formulas to determine whether an accused person will commit a crime and return to court if released. The formula, which does not use race or gender, considers factors such as whether the offense is violent, previous convictions, the defendant’s age, and previous failures to appear to court. In Indiana, the state’s highest court recently instructed judges to release people who are not a flight risk or pose no danger to themselves or others. The judges also directed lower courts to use a risk assessment tool that is similar to San Francisco’s formula.

But the use of such tools has generated criticism, since they can also produce racial disparities. Former Attorney General Eric Holder has notably acknowledged that such assessments, while “crafted with the best of intentions” may “inadvertently undermine our efforts to ensure individualized and equal justice.” He worried that the use of factors, such as a defendant’s neighborhood or socioeconomic background, “may exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society.” ProPublica analyzed risk scores for approximately 7,000 people arrested in Broward County, Florida, and found that such assessment tools routinely produced racially discriminatory results.

Electronic monitoring is another strategy that the courts turn to. Considering the prevalence of violence, sexual abuse, and disease that exists in jails, monitoring is generally better than confinement. But this strategy also prompts worries about the racial injustices that could get glossed over in the rush to embrace technology.

Monitoring devices may save money for states, but as criminal justice reform activist James Kilgore has argued, the costs may simply shift to individuals, a major concern for bail reformers. According to an NPR survey, 49 state-level court systems charge a fee for the monitoring devices; only Hawaii and the District of Columbia do not. The prevalence of monitoriong, along with its increased use on vulnerable groups such as undocumented immigrants, raises concerns about how racial minorities may bear these new costs, while states and private companies reap benefits. Complying with rules while being monitored can be difficult. If a person breaks a rule, like failing to return home at a specified time, she may have to pay for the device and return to jail.

Robin Steinberg and David Fiege, founding members of the Bronx Defenders, warn that the bureaucratic necessitates of compliance can become terribly destabilizing” for poor people who are “struggling to get by, working two jobs with inflexible hours while juggling childcare and other responsibilities.” The financial problems, compliance issues, and reincarceration concerns weaken the “electronic monitoring is better than jail” argument. Moreover, in light of new post-election civil liberties concerns, increased use of electronic monitoring may continue to raise questions.

Meanwhile, bail reformers are weighing new strategies. The Marshall Project’s Alysia Santo has documented the rise of bail funds across the country. These charities raise funds to bail out indigent defendants. As long as the defendant adheres to the courts’ instructions while out on bail, the money returns to the charity and the funds can be used for another person. Santo writes, “Most proponents of bail funds see their work as a form of political resistance, using charity to chip away at a system they believe should not depend on money.” In Chicago, African American businessman and former mayoral candidate Willie Wilson runs a pilot program that will invest $15,000 to bail out 15 to 20 arrestees who are charged with nonviolent misdemeanor charges and will give them $200 each when they are released. In Dallas, Ben McFarlin created a crowdfunding app for pretrial detainees called Help Bond Me, which allows individuals to contribute to a person’s bond.

Reformers must insure that any new strategies do not exacerbate racial inequality, keep poor people languishing in jail, or force new hardships on to the accused, her family, and the community. With limited prospects for local, state, and federal government action on bail reform on the horizon, technology and market-based solutions may mitigate bail problems in the short term. But until the criminal justice system instititutes  comprehensive changes, bail will continue to function as another punishment for poverty.

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