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Flaws in the Justice System, Part II: The Bail System & Pretrial Detention

This is Part 2 of a four-part series published by Wolf Law, LLC, which aims to highlight and discuss flaws in the U.S. criminal justice system. This series is meant to be informational only and is by no means an exhaustive list of every flaw or injustice. We hope examining these topics will help everyone (not just those entangled in the criminal justice system) bring awareness to disparities that adversely impact individuals, families, and the community at large.

When an individual is confronted with an arrest, getting out of jail is typically their top priority. After all, if they’re stuck behind bars, how will they work to pay their bills? Who will watch their children?

The most common way to get out of pretrial detention is to post bail: cash, bond, or property used as collateral to ensure the accused will appear for subsequent court appointments.

But for many Americans, cash bail is hard to come by. And if the defendant can’t post bail, they’ll remain behind bars until their case concludes.

As weeks or months pass by, the impact of pretrial detention casts a long shadow over the accused, their family, and their community. Jobs are lost, school is missed, and children are displaced.

In some cases, prosecutors will use the defendant’s freedom as a bargaining chip in exchange for a guilty plea and time served. However, they’ll return home with a criminal record, which can have vast implications on future plans. Those who maintain their innocence toil over the contradiction of their situation. If all people are presumed innocent until proven guilty, why are they locked up merely for being accused of something?

According to a 2020 report by the Prison Policy Initiative, 74 percent of people in American jails have not been convicted of a crime.

The Problem with For-Profit Bail Bonds Companies

The U.S. Bail Bonds Industry rakes in more than $2 billion a year, and much of this money is paid by some of the poorest people in the country. Here’s how it works…

When the accused stands before a judge at arraignment or bail hearing, a bond amount is recommended by the prosecutor and passed down by the presiding judge. (While the judge is ultimately responsible for setting bail, they typically side with the prosecutor’s recommendation.)

The Eighth Amendment states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This clause ensures unimpeded preparation of a defense and prevents punishment before a conviction.

Despite these principles, many judges set unreasonably high bail in some types of cases to keep suspected offenders in jail. These decisions can be politically motivated, as judges can lose elections when defendants they’ve released on bail commit new crimes. Allegations of racial prejudice in bail setting make matters worse and more complicated.  

Bail amounts vary widely—from a few hundred dollars for a misdemeanor to hundreds of thousands of dollars for major felony crimes. Other factors including criminal history and presumed flight risk can also impact bail amounts.

The average bail for a felony is approximately $10,000.

If you’re lucky enough to have $10,000 in your bank account, you can pay this money to the court, and they’ll hold it until the case is resolved at which time they’ll give back that $10,000.

Most people accused of a felony, however, don’t have $10,000 lying around to use as collateral. In fact, many people enmeshed in the criminal justice system struggle to pay bail as low as a few hundred dollars. And this is where the bail bondsman comes in…

For a fee, usually 10 to 15 percent, depending on the jurisdiction, a bail bonds company will post the total bail amount to the court via a binding contract between the defendant and the bail bonds company (often a co-signer is required as well). Because the bail bonds company takes on the liability of the defendant appearing in court, these companies may discern who they bail out and what stipulations apply beyond those set by the court (e.g., payment plans, drug testing, ankle monitors, etc.).

When the case concludes, and even if the case is dismissed or the defendant is found not guilty, the fee paid by the defendant is not returned—this is how bail bonds companies make money.

If two people commit the same felony crime and bail is set at $10,000 for each defendant, the person with $10,000 in their bank account will be released and they’ll eventually get their money back. But for the person who can’t pay, they’ll either remain in jail or be forced to work with a bail bonds company—an extra, nonrefundable expense that often includes further stipulations. Same crime…two different outcomes.

Constitutionally speaking, this flies in the face of the Fourteenth Amendment, which ensures equal protection under the law. Specifically, cash bail adversely impacts the poor, and undermines their liberty simply because they’re poor. What’s worse, several studies suggest that individuals who are detained pretrial are far less likely to have positive outcomes in their case than those who aren’t.

Incarceration is a demoralizing condition that most people try hard to avoid. In many cases, the state will use this as a bargaining chip to negotiate a deal with the accused: plead guilty and we’ll let you go home sooner. Some defendants are pressured into this deal for no other reason than they need to get back to work or get home to care for children. But returning home with a criminal record can mean employment difficulties, housing insecurity, loss of benefits and certain rights.

Time Served Is Time Lost

The United States and the Philippines are the only two countries in the world that permit for-profit bail.

While the phrase “innocent until proven guilty” is not specifically stated in the U.S. Constitution, the Fifth and Fourteenth Amendments both touch on due process.

Due process, generally, means that the government can’t deprive a person of their freedom or property unless they go through the right processes. The presumption of innocence is a fundamental element of due process and, therefore, an implied constitutional right.  

To be sure, there are instances when a defendant should be remanded (i.e., kept in jail), despite his or her ability to post bail. Defendants accused of violent crimes, for example, may pose a risk to certain individuals or the community at large. However, violent crimes do not make up the vast majority of criminal charges.

Today, despite reduced crime rates, the United States incarcerates a larger share of its population than any other country: the U.S. accounts for 22 percent of the world’s prison population. And sadly, the cost of mass incarceration extends well beyond those held behind bars.

According to the National Institute of Justice, children of incarcerated parents systematically face a host of disadvantages, such as monetary hardship; psychological problems and antisocial behavior; educational disadvantages; and they’re more likely to suffer housing insecurity.

Several studies suggest that these conditions help maintain poverty structures in certain communities but especially communities of color. For example, 43 percent of the country’s pretrial population is black.

There are collateral consequences of needlessly incarnating people pretrial. The result of this detention destroys families and cripples these communities—a noxious cycle that’s more challenging when financial resources are already scarce.

The Way Forward: Pretrial Services

The annual national cost of pretrial detention is nearly $14 billion, which begs the question: what alternatives exist?

Several jurisdictions across the country are working toward reforming pretrial practices. This includes a presumption of release, which limits qualifying offenses for pretrial detention and places the burden on prosecutors to prove its need.

There is very little evidence that money is what brings people back to court. In 1992, for example, Washington D.C. eliminated cash bail. By 2017, 94 percent of defendants were released pretrial and 88 percent showed up for all of their court dates.

New Jersey replaced cash bail with pretrial service programs in 2016. The following year, 95 percent of defendants were released pretrial and 89 percent appeared at their trial date. Subsequently, their jail population had been reduced by 20 percent.

Pretrial service programs are responsible for providing information to aid the judge in his or her release decision. This typically includes interviewing the defendant and the use of sophisticated algorithms designed to predict certain behaviors (i.e., will the defendant show up to court? How likely are they to reoffend?)

Other pretrial services might include automated text reminders for upcoming court appointments, free transportation to and from court, as well as on-site childcare.

Pretrial services aren’t perfect—some critics argue that these algorithms still perpetuate racial disparities. Moreover, the bail bonds industry and the insurers who back them vehemently oppose reform legislation. They argue it would cost taxpayers more money to provide pretrial services, but this remains to be seen.

According to the Pretrial Justice Institute, it’s estimated that implementing evidence-based risk assessment to guide pretrial release decisions could yield $78 billion in savings and benefits nationally.

The Bottom Line

The cash bail system in America criminalizes poverty by taxing the poor—detaining those who are unable to afford bail for weeks or even months. Moreover, money bond systems create exorbitantly high pretrial incarceration rates that bog down justice system budgets.

Fortunately, there’s been headway made on this issue, and jurisdictions across the country are rethinking pretrial systems and cash bail.

The questions now are: will the public support the idea of liberty, even when an individual stands accused? Will they consider the long-term community costs of pretrial detention? Or will outdated sentiments of being ‘tough on crime’ continue to guide their thinking?

Wolf Law invites you to share your thoughts about Part II of this series online. For legal news, legal commentary, and much more, join the conversation now on Facebook.