Most people in jail in the U.S. have not been convicted of any crime. That is unless poverty can be considered an automatic-lockup offense.
Tour a jail in any county in the nation and chances are six of every 10 inmates are people legally presumed innocent and still awaiting trial. The majority of those inmates are stuck behind bars not based on their presumed risk to the outside community or likelihood to appear in court, but solely because they were unable to afford their bail bond.
And the people who can’t afford to pay are not typically the high-stakes defendants with bail bonds set to the tune of $50,000 plus. Far more often the people with low-stakes bonds, between $50 and $1,000, are the ones that sit in jail, unable to work, accumulating bills and costing the taxpayers tens of thousands of dollars.
Why is this the case? A for-profit, unregulated, centuries-old $14 billion bail bonds industry thrives in this country. The people in the business of dishing out bail bonds for desperate defendants are looking to turn a serious profit from the high-stakes bonds, in part via nonrefundable fees charged to the defendents.
The current system works in such a way that the folks with money can buy their freedom, and the folks without money cannot. On top of that, the highest level alleged criminals are the ones getting bailed out by profiteering bail bonds companies, while nonviolent, low-risk petty crime defendents end up filling America’s already-overcrowded jails, at times for months—even years—on end before they’re even been allowed their constitutional right to a fair trial.
New York’s WNYC Radio published a story titled “No Bail Money Keeps Poor People Behind Bars” in which they cite the case of Raul Hernandez who was arrested Aug. 2 for misdemeanor drug possession after a cop accused him of “dropping an empty plastic bag containing heroine residue.”
While Hernandez told WNYC he has multiple convictions on his record, mainly for drugs and larceny, he said that this time he was innocent, so he turned down a deal that would put him in jail for 7 days if he plead guilty. When Hernandez rejected the plea agreement, a judge decided to set his bail at $500 pending trial.
“I couldn’t post it,” Hernandez told WNYC. “I don’t have nobody.”
So he was held in Rikers Island, New York City’s primary jail complex, for nine days—more time than he would have served if he’d accepted the plea deal.
“On his next court date, he came back expecting to argue his case — only the cop who allegedly witnessed the incident was off that day and unavailable to testify,” the article notes. “So Hernandez had a choice: maintain his innocence and stay in jail, or plead guilty, get credit for the time he already served and go home. He pleaded guilty to get out of jail.”
Fifty-three percent of all felony defendants in the U.S. remain in jail the entire time leading up to their trials due to lack of funds for even seemingly small financial bonds, according to the Pretrial Justice Institute a national nonprofit organization focused on pretrial research and education. The most common reason someone is held in jail pretrial is money—the inability to pay their monetary bail bond, according to PJI.
That bond could be for $100, or $50,000, and regardless of their alleged crime, if the person can’t pay, they will remain in jail. On average, this means a person will be stuck in jail for three or four months, but in some cases pretrial jail time can last more than a year.
Keeping hundreds of thousands of people in jail while awaiting trial is not cheap. Pretrial incarceration costs the U.S. about $9 billion every year. It costs $60 on average per day to fill a single jail bed, and in some counties that cost jumps to more than $200 per day. Taxpayers are picking up the tab.
Debtor’s Jails in New Jersey and California?
New Jersey offers one of the more severe examples of how pretrial detention in the U.S. is keeping poor people behind bars. A report conducted by the Drug Policy Alliance and Luminosity revealed in March that in New Jersey, on any given day, close to 75 percent of the 15,000 people in jail are awaiting trial rather than serving a sentence. Often, their detention is solely based on their inability to pay a nominal financial bail bond, and has nothing to do with the risks associated with their release from jail.
About 40 percent of the total New Jersey jail population has the option to post bail, but lacks the funds to do so—and more than 1,500 of those cases could secure release pending trial with just $2,500 or less. As a result, thousands of low-risk pretrial defendants end up stuck behind bars. While PJI estimates the average length of stay for pretrial inmates in the nation is between three and four months, in New Jersey it is a whopping 10 months.
In California the pretrial statistics are similarly grim according to Zachary Dal Pra, managing associate with the Crime and Justice Institute at Community Resources for Justice, an organization focused on accountability in the criminal and juvenile justice systems.
“It is fairly consistent in California that 60 to 70 percent of the inmates in jail are pretrial defendants,” he says. “This coupled with jail being a criminogenic factor and that the longer an individual spends in pretrial detention the more likely they will be convicted regardless of charge or criminal history, does not bode well for those who can’t afford to bond out.”
CJI works with jurisdictions across the country, and in California in particular. Dal Pra says over the last several years the institute observed high percentages of pretrial inmates in overcrowded local jails.
“These jurisdictions were asking for assistance to address these issues and other related issues affecting their systems,” he said. “Without effective pretrial programs to provide alternatives to keeping defendants in custody while they await charges or trial, local systems will spend a great deal of their jail resources on individuals who do not need to be held. These resources could be used in other parts of the system or jail if courts and others knew who they could release safely and were confident they would attend their court hearings.”
Money Bonds Do Not Decrease Risk
But doesn’t the money-based bail bond system, and resulting pretrial detention, keep criminal threats off the streets and ensure that alleged felons show up for their assigned court dates? According to the research, the answer is a resounding no.
Dal Pra says the more CJI worked with county jail systems, the more they saw reliance on financial release conditions.
“This concerned us as we knew the research indicated that financial bonds plays no role in predicting who will show up in court or commit new crimes while released,” he said. “So we started looking at pretrial risk assessments based on validated research on predictors of pretrial behavior as an alternative jurisdictions could use to assist decision-makers in releasing offenders.”
Mike Jones, a senior project associate for PJI in Colorado, has worked on criminal justice issues for 10 years, and pretrial issues for six.
“The fact is, money does not address public safety, but systems act as if it does,” Jones told AlterNet.
At the International Drug Policy Reform Conference in Denver last month, Jones was part of a panel discussion titled, “How Money Bail Exploits the Poor and Makes the Bond Industry Rich.”
The panel outlined issues of inequity caused by money-based bail bonds, and presented a new study released mid-October that for the first time compares pretrial release outcomes by the type of money-based bond used.
The study controlled for the statistical risk level of defendants released pretrial—meaning their presumed public safety risk as well as flight risk.
The study compared unsecured bonds (meaning no money is paid upfront but the defendant promises to pay the full amount if they fail to appear in court at the scheduled date) with secured bonds (meaning either cash or surety that a defendant must pay upfront in order to be released from jail). The Colorado-based study took into account a total of 1,919 cases.
The results showed unanimously that the amount of money attached to a bond does not make a difference in the likelihood of whether a person will appear in court for his trial date.
Unsecured bonds are just as effective at achieving public safety as secured bonds. Unsecured bonds are also just as effective at achieving court appearance as secured bonds, and the amount of money attached to the bond did not make a difference in court appearance rates. A larger dollar amount attached to a secured bond is, however, associated with increased pretrial jail bed use, which makes sense because when it comes to unsecured bonds, the lower risk, releasable defendants are allowed to leave jail sooner (94 percent unsecured vs. 61 percent secured).
The study also found unsecured bonds are just as effective as secured bonds at preventing defendants who fail to appear in court from “remaining at-large on a warrant.”
The For-Profit Bail Bonds Industry
In some countries, including Australia, Canada and England, it is a crime to write bail bonds for profit.
In the U.S., a century-old for-profit commercial bail bonding industry thrives around the cash-based bonds system. Defendants who can’t afford to pay bail often turn to bail bonding companies, which can (and do) charge a nonrefundable fee in exchange for the bail bonding company’s promise to pay the full value of the bond to the court should the defendant fail to appear.
According to a report by the Justice Policy Institute, a national nonprofit focused on justice reform, about 15,000 bail bond agents work in the U.S., who write bonds for approximately $14 billion every year. Those companies are backed by multibillion-dollar “insurance giants.”
According to JPI, bail bond companies take billions from low-income people every year, with no return investment in in society as far as public safety goes.
In March 2012, PJI released a report titled, “Rational and Transparent Bail Decision Making: Moving from a Cash Based to a Risk Based Process,” a section of which outlines the various ways the private bail bonds industry is unchecked and unaccountable to both defendants and the courts system.
Among the most alarming facts about the bail bonds industry include the fact that bail bonds companies have immense financial incentive to put up bonds only for the highest level offenders, who are typically awarded higher bail bond amounts by the court. It follows that the higher the bond, the more expensive a non-refundable fee the company can logically charge.
More alarming still is the idea that bail bonding companies can actually profit from increased criminal activity. They are only liable to ensure the defendant appears in court, but have zero accountability for that defendant’s potential crimes once they are out in the community on a bond. “In fact,” the report states, “the more that defendants are rearrested while on bond, the more potential business for the bonding companies. Rearrests simply become opportunities for repeat customers.”
Perhaps most striking, however, is the fact that a bonding company can legally take a fee from a defendant, and once they are released from jail the company has complete authority to return them to custody the very next day without providing any reason for their actions. And the company gets to keep the fee.
Pretrial Reform Is Possible
Bail bond reform bills are already in place in four states. Wisconsin, Illinois, Kentucky and Oregon have done away with commercial bonds.
At the International Drug Policy Reform Conference panel, speakers discussed the example of Kentucky, where in 2011 lawmakers began working to improve the state’s pretrial system. They successfully shifted the pretrial procedure from reliance a money-based system to a risk-based system that assesses who is best-suited for release. Kentucky’s system now relies on required risk-assessments and an improved system of pretrial supervision, which emphasizes alternatives to jailing lower risk defendants. Courts require conditions like GPS monitoring and drug testing for more moderate risk offenders. When defendants are kept in jail while awaiting trial, they receive $100 credit toward their bond each day, which allows them to earn their release while locked up.
Organizations like PJI and CJI among others are working to expand reform efforts, and change the way the pretrial criminal justice system works nationwide. They are focused on shifting it away from money bonds and toward risk assessment.
Jones noted that especially now, as government funds are tight across the board, it is time to establish more efficient, risk-based pretrial systems.
“The system cannot afford to lock up people it doesn’t need to anymore,” he said. “In the current pretrial system people are ending up in the wrong spot, whereas a risk-based system helps assure the right people are in the right place, whether that’s jail or the community.”
Zachary Dal Pra of CJI told AlterNet the best way people can work to change the current system is to “urge their elected officials and criminal justice policy makers to use research-based jail alternatives to strategically reduce the use of jail for many pretrial defendants.”
He continued, “There are safe and effective risk assessment instruments that courts and others can use in making release decisions, and encouraging them to look at these can help. There is also a need to educate criminal justice stakeholders in the pretrial research and literature and the costly use of financial bonds.”
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