Why the United States needs to bail on cash bail

Bryn Evans • December 11, 2019

Chapter Tags: Law, Politics

This article builds on a 2019 piece written by the author for the Palatinate newspaper.

In 2010, Kalief Browder, then sixteen years old, was accused of stealing a backpack and granted US$3000 bail. Unable to pay, he was detained in New York’s infamous Rikers Island jail for three years awaiting trial, before charges were ultimately dismissed. In 2015, Browder committed suicide.

According to Prison Policy Initiative, an American criminal justice non-profit, nearly half of Americans granted cash bail are forced into jail in the lead-up to their trial because they are can’t afford the cost. To give this figure a numerical value, New York City alone saw 33,000 defendants unable to post bail in 2017.

Bail is a feature in the criminal justice system of almost every Western democracy. Its meaning varies depending on who is asked, and it operates slightly differently in every jurisdiction. In the interests of clarity and understanding, it’s worth briefly summarizing some important terms as well as the scope of the article before further delving into the issue.

What is bail?

In most jurisdictions, when an individual is arrested and charged with a crime, they will have to wait anywhere from several days to several months for a trial. Within the first day, a judge will decide whether during this waiting period, the accused will be placed in jail or granted bail; this decision is made with regard to the seriousness of the alleged crime, the flight risk posed by the defendant, and the danger to the community presented by the defendant.

The granting of bail allows the individual to return home while awaiting trial and signifies that the judge has deemed them low-risk, both in terms of likelihood to skip their hearing and threat to the public.

The term ‘bail’ implies conditions on the release. Cash bail (or money bail), where the accused pays a security to the court upfront then receives this money back once they attend trial, is just one form. In the US, cash bail has proliferated in use to the extent that many now equate the general idea of bail with cash bail.

By contrast, UK judges favour other conditions, such as electronic tagging, imposition of a curfew, driving prohibitions, or regular police station visits.

Cash bail is the oft-referenced villain in calls for law reform, with critics contending it perpetuates an existing financial and racial divide. Our focus will therefore be cash bail, specifically in the US, given its prevalence. We’ll also consider the operation of bail in other jurisdictions, although this will generally be limited to proposals for US reform.

Money bail in practice: why is it considered problematic?

Yet, money bail is not only flawed in principle: statistics show that its operation disproportionately hurts low-income and coloured communities. While 2015 US Bureau of Justice data exhibits that the median annual income of people incarcerated pretrial sat at just US$15,109, the median bail in the United States is US$10,000, or roughly eight months of pure income. When you take into account the fact that four in ten Americans can’t cover even an unforeseen $400 expense, it’s unsurprising that nearly half of Americans offered cash bail are forced into pre-trial detention.

Reports also show that people of colour are twice as likely as white people to be unable to post bail, due to lower median annual incomes pre-incarceration and structural injustices resulting in stiffer bail calculations.

Perhaps even more concerning than an inability to post bail are the indirect effects this can have on families of the defendants. Of men who can’t afford their set bail, 53% are parents of children under 18, while for women, the figure stands at 66%. Being forced to remain in jail pre-trial, even for just several days, can result in losing a job, housing, or custody of children—all of which have detrimental repercussions for the defendant’s innocent family and children.

All this said, there is one out for Americans financially unable to post bail. Bail bondspeople operate as a type of private lender, paying bail on the behalf of cash-strapped defendants.

The catch: bondspeople charge non-refundable fees—up to 10% of the total bail price—and can increase these earnings through exorbitant interest rates should any of the fee instalments be late. Even if charges are dropped or the defendant is acquitted, fees cannot be recouped. Given defendants of colour are most likely to be unable to post their own bail, it comes as no surprise that the bail bond industry predominantly takes advantage of exactly those people: between 2012–2016 in Los Angeles, people of colour accounted for roughly 78% of gross bail bond payments; in 2015 in New Orleans, more than 85%.

Like the alarming majority of predatory industries in the US, bail bond companies use their immense wealth to sway public policy. The bail bond industry alone is worth an estimated US$2bn per year, and with many of the major players associated with top American insurance companies, they have no shortage of funds to sponsor anti-reform campaigns.

How can it be reformed?

Cash bail is a difficult sell: if poor, individuals awaiting trial either enter into contracts with extortionate lenders, or stay locked in jail, jeopardizing their personal life. The latter option also puts added strain on jails, costing the US government an estimated $15bn each year.

So, what action can be taken? To date, eight states have banned the for-profit bail bond business. Technology companies, such as Facebook and Google, have also prohibited all advertising by bail bondspeople on their platforms. Google’s Senior Director of Global Product Policy, David Graff, said that in contemplation of research showing the industry exploits low-income communities of colour, such ads breached their terms of service.

Although a positive step, this addresses only a symptom of a much larger systemic issue: US judges need to stop having such frequent recourse to cash bail. In the UK, the Bail Act 1976 provides for the numerous conditions a judge can impose on a defendant’s bail—it is the discretion of judges which has led to such a small proportion of individuals being given money bail. In the US, although it is largely state law which regulates a judicial discretion in this matter, judges are still given roughly the same spread of options.

While some judiciaries, such as the California Supreme Court, have taken an active role in reducing the frequency of cash bail, several state legislatures have recognized that judges alone cannot resolve the issue. New Jersey and Alaska have passed legislation banning money bail in the majority of cases, while New York and California are working on similar laws, slowed in part by pro-bail-bond campaigning. New laws would see judges more readily impose bail conditions more similar to parole, such as regular social worker appointments, curfews, and police station check-ins.

Instead of personal payment or payment by a bondsperson, more states may also look to implement the UK’s system of sureties, which allows a third party (generally a relative or friend) to post bail on the defendant’s behalf. Wisconsin has already instituted a policy along these lines.

Interestingly, the reform discussion brings up the question of whether bail should be prohibited altogether. While proponents of this idea argue that bail in all its forms puts public safety at risk, it is actually the case that those found guilty for violent crimes, such as homicide or sexual offences, are among the least likely to commit a similar offence within three years of release—30–50% less likely to commit a second infraction than those convicted of larceny or drug offences.

And, of course, we must recall the American Constitutional principle that brought us bail in the first place: innocent until proven guilty. The argument that defendants should be detained before proof of guilt disfigures this concept almost beyond recognition.

Put simply, cash bail in the US needs to be thoroughly reformed. Its operation is financially and racially discriminatory, with consequences reaching from family detriment, to the effective privatization of Constitutional rights, to, in extreme scenarios, suicide. Already, in a capitalist country, wealth dictates one’s privileges within so many arenas—the criminal justice system cannot be one of them.