America’s Broken Bail System Substitutes Cash for Justice, Leaves Poor Behind Bars
The good news is that there are fairer and more effective approaches taking hold in some states as groups push for reform.
The presumption of innocence is a cornerstone of American justice. But tonight, more than 450,000 people across the United States will sit in a jail cell awaiting trial.
While some of these individuals pose a flight risk or a danger to the community, many simply cannot afford to pay their court-assigned bail. In New York City, even when bail is set at $500 or less, “only 15 percent of defendants are able to come up with the money to avoid jail,” according to a 2015 New York Times report.
Our bail practices open doors—literally—to those with greater access to cash while trapping the poor behind bars, often for weeks or months at a time.
Such was the case with Adriana. In 2014, she was a single 24-year-old living with her baby daughter in New York City. A runaway from an abusive mother, she took refuge in a shelter for victims of domestic violence.
One night after curfew, Adriana left her daughter with a friend at the shelter to buy diapers at a local store. A staff member who saw her leave called the police, who arrested her for child endangerment and placed her daughter with the city’s Administration for Children’s Services.
Although Adriana had never committed a crime and had never failed to appear in court, the judge, without explanation, set her bail at $1,500—more than she could pay. Adriana spent the following two weeks on Rikers Island, during which time she lost her spot at the shelter.
“Bail changes the conversation,” her attorney said after her release hearing. “If bail hadn’t been set, Adriana wouldn’t have to be negotiating to get out of Rikers. She’d just be released.’’
When defendants are held in jail because they can’t afford to pay, they are likely to lose their jobs and find themselves deeper in crisis. That puts public safety at risk. Research has found that low-risk defendants detained for just two to three days are nearly 40 percent more likely to commit new crimes before trial than those who are held 24 hours or less.
There are fairer and more effective data-driven practices consistent with fundamental principles of liberty and based on a smart-on-crime and soft-on-taxpayers approach. Defendants could be detained based on the risks they present, not their ability to pay a given monetary sum. Basing someone’s freedom on the ability to afford bail exacerbates the two-tiered system that already exists between the wealthy and everyone else. Encouragingly, policymakers across the country have begun implementing reforms with promising results.
In 2014, lawmakers in New Jersey passed an overhaul of the state’s bail system. The law, which took effect last year, all but eliminated cash bail. Judges now decide whether defendants go free before trial based on an analytic assessment of the risk a defendant will skip court or commit a crime.
After one year under the new system, New Jersey’s pretrial jail population dropped by 20 percent and the state received an “A” grade from the Pretrial Justice Institute, a nonprofit that advocates for bail reform.
Other states are considering similar measures. The Ohio legislature is currently considering reforms that would provide judges with objective risk assessments of each defendant. The Buckeye Institute estimates the initiative would reduce the jail population and save localities $67 million.
Private organizations such as Google and the Charles Koch Institute have increasingly become involved in a movement—spearheaded by advocates at the state and local level—to achieve nationwide bail reform. Google has decided it’s best to ban ads for bail bonds that frequently target vulnerable users with murky financing terms and confusing language. For its part, the Charles Koch Institute is partnering with the Pretrial Justice Institute to commission a nationwide poll measuring public sentiment of bail and pretrial practices to inform future policy decisions.
Americans are compassionate and caring, but our pretrial practices are often anything but. It’s time for lawmakers, practitioners, and communities to come together to develop workable reforms to the bail system that protect the rights of the accused while safeguarding the public. We stand ready to do our part.
Malika Saada Saar is Google’s senior counsel on Civil and Human Rights. Mark Holden is chairman of Freedom Partners Chamber of Commerce and general counsel for Koch Industries.