Get Out of Jail Free Cards: Overhauling the Bail System
Updated: Oct 23
The Eighth Amendment of the United States Constitution reads “excessive bails shall not be required, nor excessive fines imposed.” But does the definition of “excessive” change depending on an individual’s income? If not, what happens when an individual cannot afford the bail set by the court? Despite being innocent in the law’s eye, that person can face weeks or months in jail awaiting court proceedings simply because he could not afford bail. According to the most recent Bureau of Justice Statistics in 2016, 65% of individuals in city and county jails were awaiting trial. When two-thirds of the jail population are people without a conviction, individuals face the unfortunate reality of “innocent until proven guilty – unless you’re poor.”
When an individual is arrested, the court must determine whether he will be released pending subsequent hearings, or detained. If the court chooses the former, it must then decide whether it will require the arrested to pay bail, which the court uses as collateral to help ensure the defendant attends subsequent hearings. If the defendant attends all hearings, the court returns the bail payment at the conclusion of proceedings. This collateral-based approach seems intuitive. However, it only works if the individuals have the money to make bail, and critics argue that correlating pretrial freedom with the financial ability to obtain it is inherently unfair.
The procedures courts use to determine bail amounts vary among states as well as between jurisdictions within states. The traditional procedure is a money bond schedule – a list of felonies and misdemeanors with corresponding bail amounts. Felony bond schedules predictably impose higher bail amounts, but misdemeanor bond schedules can impose $2,000 - $15,000 bails, some of which are for non-violent misdemeanors. For example, one California jurisdiction imposes a $10,000 bail for a second-offense drug possession charge. However, even imposing a $2,500 bail for the first offense could result in pretrial detention due to the inability to pay. For example, the Prison Policy Initiative revealed that among the individuals in jail awaiting trial, the median monthly income prior to detention ranged from $568 to $900. However, the median bail amount for their arrests was $10,000. This disparity inevitably leads to individuals awaiting trial in jail simply because they cannot afford to go home.
Jurisdictions that do not use bond schedules rely on a variety of pretrial assessment tools to determine bail amounts. A pretrial risk assessment tool provides an objective analysis of an individual’s likelihood of appearing in court if released before trial. Some of the factors considered include criminal history, age, and danger to society. However, Alabama and Indiana, use pretrial risk assessment tools that include factors that evidence reveals have no effect on the likelihood of court appearance, like past criminal history. Organizations like the Pretrial Justice Institute that jurisdictions use only evidence-based pretrial risk assessment tools so if courts must impose bail, they can do so in amounts that comport with societal fairness.
If you are unable to pay your bail in full, there is another solution – but it will still cost you. A family can contract with a bondsman who will charge a 10%, non-refundable fee based on the bail amount and will pay the bail on the individual’s behalf. While this may be a feasible option for lower bail amounts, families may still be unable to come up with 10% of a $50,000 bail, for example. As a result, families enter into loan agreements with bondsman, so in addition to the 10%, non-refundable fee, they also owe interest. This creates a perpetuating cycle of poverty against individuals who haven’t even been convicted of a crime. Thus, indigent families are faced with the difficult decision of either leaving a loved one in jail or soliciting a bondsman. Those who are unable to make loan payments are unfortunately forced to leave their loved one in jail.
A number of states have taken steps to reform or end the bail system entirely. New Jersey is the leading example of the latter approach, passing legislation in 2014 to virtually end the bail system beginning in January 2017. Although bail is still an option, judges have nearly done away with it. As a result, the percentage of individuals in jail awaiting trial dropped 15% in the first six months and crime rates dropped slightly as well. Philadelphia is also a pioneer in ending the bail system. Just this month Philadelphia’s district attorney proposed a new policy where prosecutors will no longer request bail for individuals arrested on misdemeanor or non-violent felony charges, including forgery and food stamp fraud. As a result of these changes, the city anticipates a decrease of 4,000 individuals in jail awaiting trial annually. Lastly, New York Governor Andrew Cuomo is pushing a proposal to end bail for misdemeanor and non-violent felony charges. This proposal comes on the heels of a New York study revealing that pretrial release based on recognizance, or simply release without requiring bail, had virtually no effect on the likelihood of appearing in court. States are slowly realizing that courts do not have to impose inordinate bails on individuals to ensure efficient court proceedings.
Despite the strides state and local governments have taken, the United States as a whole still has a lot of work to do. According to a 2017 study conducted by the Pretrial Justice Institute, (PJI), that analyzed the quality of pretrial assessment tools implemented in each state, the United States as a whole received a “D”. However, PJI remains optimistic, noting that had this study taken place in 2007, the grade would have unequivocally been an “F”. It appears that so long as states follow the recent momentum created by states like New Jersey and New York, the United States will be well on its way to receiving high marks on future assessments.