By Mallory Harmon
In 2010, sixteen-year-old Kalief Browder was arrested after being accused of stealing a backpack. Browder was eventually deemed not guilty, but because his family could not afford to pay his $3,000 bail, he spent three years in jail awaiting his trial. Browder committed suicide two years after his release.
When a defendant is apprehended, there are several scenarios that take place which can lead to a defendant’s pretrial release. Sometimes, a defendant is released on citation, meaning they are not formally booked in the police station, and instead are issued a citation saying that they must appear in court. Other times, the defendant is released on their own recognizance, meaning that the judge is satisfied with a mere written commitment signed by the defendant to appear in court and face their charges. Finally, a defendant can be offered cash bail. Cash bail is money demanded as collateral, which acts as a guarantee that the defendant will appear in court; as the cash the defendant pays will be returned to them (with the exception of certain fees) if and when they attend their required court date.
Keith Humphreys, a Washington Post journalist, researched the phenomena of US jails remaining as full as ever even as crime rates drop. Humphreys’ conclusion was that there has been an increasing number of unconvicted defendants waiting in jail because they can’t afford bail. According to Global Citizen, “Since 1970, the population of incarcerated people in the United States has grown 700%.” The majority of that influx is due to the incarceration of unconvicted defendants; people who are “jailed because they can’t afford bail.” Humphreys confirmed, “About 95 percent of the jail population’s growth is thus accounted for by people who haven’t been convicted of a crime.” Not only is this system extremely costly (jailing unconvicted people costs the US around $13.6 billion each year), it disproportionately affects low-income individuals, opens the door to predatory bondsmen, and is detrimental to the families of defendants.
Often, whether a defendant will remain free before being tried is determined by the amount of money in their bank account. Two defendants, arrested for the same misdemeanor and with bail set at the same amount, can have completely different experiences with the judicial system, based on whether or not they can afford to pay their bail. According to Vox Media, “Judges routinely assign bail that people can’t afford to pay.”
As displayed in sixteen-year-old Browder’s case, even cash bail that seems manageable to most is irreconcilable to those in perilous financial standing. According to New York City’s Department of Correction, “38,000 inmates were detained because they couldn’t pay bail. Of these, nearly 10,000 people could not afford $1,000 in bail, and 3,400 couldn’t come up with $500 or less.”
Since there is a high likelihood that defendants will be unable to post their bail (median bail is $10,000; eight months income for the average defendant), bail bonds services are in great demand. These businesses, which are often located in low-income communities of color, are designed to grant temporary freedom to impoverished defendants; many of whom cannot afford to pay even the lowest bail amount. As an Atlantic article explained,
Instead of paying a refundable amount to the court, they pay a non-refundable portion of the total bail (usually 10 percent) to a bail-bonds company, which then writes a bond for the full bail amount promising that it will be paid if the person doesn’t appear for court. That 10-percent payment is money that customers will never get back, even if there’s no conviction. In addition to losing the money they’ve put down, bail bonds also often leave families paying loan installments and fees even after a case is resolved...
“People who turn to bondsmen are often overcharged, and are the victims of deceptive practices,” said Peter Goldberg, executive director of the Brooklyn Community Bail Fund. “There’s a complete lack of transparency.” Bail bondsmen have an inordinate amount of power over low-income defendants desperate not to spend weeks, months, or years before their trial behind bars.
Many defendants cannot afford to pay the bail bond service fee, let alone their actual bail, so they have to rely on the assistance of friends and family members. Bail bond service agents routinely question potential clients about their social networks, attempting to find family or friends willing to pay the service fee in their clients’ stead. According to a former bail bond agent writing for The Appeal, agents are told which relationships are most likely to cover clients’ debts: mothers and long-term romantic partners. Therefore, according to The Appeal, as 85 percent of people in jail are male and 52 percent are non-white, on the whole, women of color are bearing the weight of their relations’ bail bond service fee. If these relatives are unable or unwilling to pay the service fee, they are left without the financial and relational support of their family member for however long that person is behind bars before trial. In these circumstances, the impact of an arrest does not lie on the shoulders of the accused, instead it falls on their relatives.
A Public Justice Response
As seen in the case of Kalief Browder, cash bail discriminates against low-income individuals and families; allowing those with financial means to buy their freedom while those with limited financial resources must wait for their trials, unconvicted, behind bars. This system, which is based on socioeconomic standing, contributes to the disproportionate representation of racial minorities among the incarcerated.
Christians recognize that every human is created in the image of their creator and, therefore, no matter what faith they claim, each human has inherent dignity. The dignity of defendants in America is being jeopardized by the cash bail system. Defendants who remain unconvicted of the crimes for which they are held are stripped of their ability to contribute to their own wellbeing in addition to that of their families and communities. In order to address this crisis, both government and civil society must respond.
The Role of the Government
According to the Center for Public Justice’s Guideline on Government, “The government of a political community bears responsibility to legislate, enforce, and adjudicate public laws for the safety, welfare, and public order of everyone within its jurisdiction.” Yet, our criminal justice system must hold this in tension with government’s call to “promote what is good for human flourishing.” A cash bail system that disproportionately keeps low-income defendants behind bars before trial fails to meet that standard.
In recent years, some states have started to recognize that the constitutional right to freedom must not be determined by income and have begun to implement alternatives to cash bail. While bail laws vary from state to state, some states have reformed or abolished cash bail. California, for example, deemed the system unconstitutional as it favors the wealthy who have the means to “pay for freedom,” and banned the practice. New Jersey replaced its policy of offering bail to every defendant, whether they were a risk to society or not, with a risk assessment system that reduces the frequency at which cash bail is required.
According to the 2018 New Jersey Judiciary’s “Report to the Governor and the Legislature,” after the implementation of risk assessment, “There were 6,000 fewer people incarcerated on October 3, 2018 than on the same day in 2012.” Not only are there less defendants being held in New Jersey jails, but according to the report, there has been no significant drop in defendants showing up for their trials. When New Jersey refuses to release defendants because of their risk to society or their likelihood to flee, it is because they have been convicted of serious or gun-related offenses. “Concerns about a possible spike in crime and failures to appear [in court] did not materialize,” the report said.
Like New Jersey, states have begun to abandon cash bail in favor of risk assessment. There are concerns about the subjectiveness of risk assessment and the unintentional or otherwise racial discrimination that takes place when judges determine whether a defendant is a threat to society or a flight risk. To minimize the subjectivity, courts have implemented the use of bail algorithms. A bail algorithm is software designed to determine for a judge whether or not a defendant should be eligible for pretrial release. The algorithm takes into account the defendant’s age, current charges, criminal history, and their record of failing to appear in court and scores them based on the statistical likelihood of the defendant fleeing or being a risk to society. In the past two years, California and New Jersey became a trailblazers by implementing the use of bail algorithms and began to release defendants without requiring cash bail based on each one’s score.
For states in which cash bail remains, government has a responsibility to ensure that bail bondsmen are not acting in a predatory manner. Cash bail often forces defendants or their family members to rely on often usurious bail bond services. Government must ensure just lending rather than allow predatory bail bond services to continue. Lenders have a responsibility to lend at reasonable rates and ensure that the borrower has the ability to repay.
The Role of Civil Society
When it comes to cash bail reform, civil society institutions like faith-based organizations, nonprofits, and churches can offer short-term financial assistance and advocate for long-term change. These institutions have a unique perspective on their individual communities and have the ability to identify and rectify specific needs on the local level. Their immediate action helps to ease the burden of cash bail while drawing attention to the need for judicial reform.
In a June 2019 lecture entitled “Bipartisanship Still Breathing: Finding Common Ground through a Restorative Approach to Justice,” Heather Rice-Minus, director of government affairs at Prison Fellowship, said, “At Prison Fellowship we do believe cash bail unduly affects people in poverty and we are in favor of reforming cash bail.” A Prison Fellowship article, “Stuck in Pretrial Limbo,” emphasized the need for reform, “If a boatload of cash is the only factor in determining whether or not a person can go free, keep a job, and spend time with family while he or she awaits trial, you have an unjust system that disproportionately burdens the poor and does nothing for public safety.”
Faith-based organizations and nonprofits have begun to recognize the injustice of cash bail and offer financial assistance that stands as a responsible alternative to bail bond services. The Bail Project is an organization dedicated to providing direct financial assistance to unconvicted defendants across the country in order to relieve the burden of bail payments. According to their website, their work is “an act of resistance against a system that criminalizes race and poverty and an act of solidarity.” This group is dedicated to proving that “bail is not necessary to ensure people return to court.” Another example of a nonprofit dedicated to the elimination of cash bail is the National Bail Fund Network, which connects, supports, and advocates for community bail funds across the United States. Community bail funds offer a practical way to get involved; community members are able to donate to a fund, which posts bail on behalf of a defendant who could not afford to pay their own.
Ultimately, government has a responsibility to enact cash bail reform. As suggested in a recent Shared Justice article highlighting the journey of a Political Discipleship group advocating for cash bail reform, citizens can meet with their public officials about the issue of cash bail; ask them what their stance is on bail and what action they are taking to reform your local judicial system. Simply making public officials aware that there is a group of people dedicated to the resolution of the cash bail issue can be a catalyst for reform.
Citizens dedicated to the flourishing of their communities and to honoring human dignity can advocate for cash bail reform in their own state, contribute to community bail funds, or get involved with nonprofits addressing the issue locally.
Sixteen-year-old Kalief Browder was held in solitary confinement for two of his three years in jail, before committing suicide two years after his release. Browder’s family attributed his suicide to the psychological damage he experienced during his unconvicted time in jail. Three out of four people who die in local jails are unconvicted and 34 percent of these deaths are suicides. Cash bail has the power to remove individuals from their communities, workplaces, and families. For some, the consequences are fatal. This disastrous reality should mobilize advocates for public justice to act in their local communities as well as call government to fulfill its intended purpose: to promote flourishing through equitable laws and practices.
Mallory Harmon is an intern for the Center for Public Justice and is serving as the assistant editor of Shared Justice for the summer of 2019. She attends Covenant College (GA), majoring in international studies and minoring in Spanish and political science.
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