Five Figures to Consider
In America, you are innocent until proven guilty, as long as you have the money for bail. Whether your alleged infraction is turnstile-jumping or sexual assault makes little difference. What matters is your ability to pay. Real estate heir Robert Durst, a murder suspect and stalker, posted $250,000 bail and skipped town. Bill Cosby, out on $1 million bail, has been accused of sexual assault by 40 women. Teenager Kalief Browder, unable to pay his $3,000 bail, was held for three years at Rikers Island on suspicion he stole a backpack. The charges were later dropped.
The purpose of the bail system is to ensure public safety, compel defendants to appear in court and allow no-threat defendants to go free before trial. Unfortunately the system in most states does not allow for a risk-assessment of defendants. Instead bail is set according to a predetermined schedule. If you can pay, you walk. If you can’t, welcome to jail. The Eighth Amendment prohibits imposition of excessive bail or fines, yet on any given night, an estimated 457,000 individuals are jailed without being convicted of a crime, the majority simply because they can’t make bail. In New York City, 84% of non-felony defendants are unable to post bail at amounts set below $500. Jailed “pre-trial” defendants cost American taxpayers $38 million per day or $14 billion annually. Over 70% of people in jail held jobs when they were arrested, and over half are parents to minor children. Prior to bail reform in New Jersey, non-violent offenders unable to pay bail spent an average of ten months in jail awaiting trial. Even one night in jail can cause someone to lose their job, housing and custody of their children, thus increasing a family’s chances of depending on the public safety net and further inflating community costs.
Pretrial detention is appropriate for dangerous defendants charged with violent crimes. But, according to the National Association of Counties (whose members operate 87% of all U.S. jails), 69% of pretrial jail detainees are evaluated as low-risk. They are detained for transgressions such as failure to pay traffic and other fines, possession of marijuana, DUI, overgrown grass and shoplifting. When a person presents themselves for trial in jailhouse garb and shackles, surprise, they are 30% more likely to be convicted than someone who paid bail and was released while awaiting trial. Of people incarcerated until trial, 92% will plead guilty and receive sentences that on average are eighteen months longer than those free on bail.
Non-monetary alternatives to the cash bail system include (1) release on a defendant’s own recognizance, (2) unsecured bonds, which require payment only if a defendant does not appear in court, (3) conditional release in which a defendant must adhere to stipulations such as drug testing or curfews in order to remain out of jail and (4) release to a pretrial services agency, which conducts a risk assessment and provides appropriate supervision.
Sen. Kamala Harris (D, CA) and Sen. Rand Paul (R, KY) have introduced a bipartisan bill, The Pretrial Integrity and Safety Act of 2017, that would incentivize states with a $10 million grant to replace cash bail with a risk-assessment based strategy. Such a strategy would allow judges to qualify a defendant’s pretrial release by evaluating a defendant’s likelihood of committing another crime and of returning for mandatory court appearances. The judge could stipulate such conditions as house arrest or electronic monitoring or even deny release to those deemed high-risk.
Kentucky, Washington, D.C., New Jersey and Alaska have virtually eliminated cash bail and instead utilize pretrial service agencies to evaluate risk and make recommendations based on public safety. A review of Washington, D.C.’s, reformed system showed that in 2015 94% of defendants were released pretrial, 90% made their court appointments and 98% were not re-arrested for a violent crime pretrial. California, New York, Connecticut, Texas, New Mexico and Maryland are all considering similar bail system reforms.
A Colorado study found that whether released defendants were of higher or lower risk, unsecured bonds were more cost-effective and offered about the same public safety and likelihood of court appearance as traditional, secured bail bonds. Whether or not money was on the line had little impact. Of low-risk defendants released pretrial on unsecured bonds, 93% did not commit any new offenses, and 97% appeared for all court dates. Of low-risk defendants released on traditional bonds, 90% did not commit any new offenses, and 93% appeared for all court dates. While on release, 58% of high-risk defendants with traditional, secured bail bonds committed a new crime, and 53% appeared in court. Commercial bail bond companies are illegal in all but two common-law countries – the U.S. and the Philippines. The bail bond industry, not shockingly, is resisting overhaul efforts. Bail bonds worth $14 billion are issued annually, and the industry contributed over $3.1 million to political campaigns between 2000 and 2011 to argue that a money deposit is the best way to ensure a defendant’s appearance in court. Data does not bear that out.
FIVE FIGURE THINKING
High-risk offenders shouldn’t be able to buy a get out of jail card. All defendants should be evaluated and released based on their risk to the public not on whether they have enough money on hand to pay bail. Fiscal prudence and common sense say it is time to implement non-monetary alternatives to cash bail for low-risk offenders while retaining cash and no-bail options for those judges deem to be high-risk threats.
Brennan Center for Justice, The Bronx Freedom Fund, Crime and Justice Institute, John Jay College for Criminal Justice, Justice Policy.Org, National Association of Counties, Prison Policy Initiative, State of California Courts, State of New Jersey, PreTrial Justice Institute, U.S. Department of Justice