The racial and class stratification of this country and how judges allow personal bias to effect decision-making is pervasive, and money bail is no different.
In 2017, the country’s leading civil rights organization the American Civil Liberties Union started a multi-year campaign to reform the justice system from sentencing and incarceration rates down to the unequal applications of cash bail.
The campaign cites wealth and racial disparities as reasoning for discontinuing money bail, which continues to be an exclusive way for people of relative wealth to cheat the criminal justice system. Black and brown people are doubly attacked by this egregious system because they are both disproportionately poor and face a social paradigm that collectively associates negative ideas with who they are as individuals.
In a 2018 Harvard analysis of bail decisions in Miami and Philadelphia, researchers found several pieces of evidence that suggested discrimination on behest of black defendants. This evidence is most visible in part-time and inexperienced judges, both black and white, mostly due to an unfounded association of black defendants with high-risk releases.
Experienced judges are less likely to stereotype black defendants, but the unequal treatment persists when compared to white defendants of similar status and charge. The implications of the study suggest that on-the-job training could have a pivotal role in decreasing these black and white disparities in pretrial detentions, but that only remedies a portion of the problem.
Stereotyping and the association of black people with crime, danger and aggression has been proliferated through the ethos of this country. This bias seeps into every institution. The criminal justice system is just the most materially consequential because a judge’s discretion can have far-reaching impact.
Aside from racial inequalities, money bail also exacerbates a broken class system that finds economically disadvantaged people, regardless of race, at the crosshairs of a system already stacked against them.
The constitution guarantees equal access to justice, yet money bail bellies this founding principle by eschewing equality in favor of profit. The Prison Policy institute estimates that about 70 percent of jailed people have not been convicted. Their only crime? They can’t afford bail.
Poor people do not have equal access to justice and freedom in the same ways that their wealthier counterparts do. This is further illustrated by the correlation found between pretrial detention and conviction rates in a 2016 study conducted by Yale researchers.
People who are detained pretrial in local and county jails are more likely to be strapped down into a plea bargain and face conviction whereas their monetarily privileged counterparts can afford attorneys to fight their charges.
This is a gross perversion of the judicial system. Money bail was originally set up as a surety measure, but now it does not access whether a person’s release is risky. It only accesses a person’s ability to fund a bail bondsman. For those who can’t, the trauma and criminogenic effects of detention takes their toll.
One needs to look no further than the Kalief Browder case. In 2010, at the age of 16, Browder was detained by police officers after being accused of stealing a backpack. He would later be indicted and charged by a grand jury despite a substantial lack of evidence.
Since his family lacked the proper funds to post his $3,000 bail, Browder was booked in Rikers Island where he would stay for three years, the bulk of which was spent in solitary confinement, despite being legally innocent. His case was never, officially, heard by a judge as the prosecution continued to defer the trial until their main witness, a Mexican immigrant, returned to his home country. Browder’s case was dropped in 2013.
After two years of freedom, Browder committed suicide outside his mother’s house. He cited his jail time as a trauma he could not overcome; writing extensively about the abuse he suffered at the hands of other inmates and correctional officers.
The American criminal justice system currently detains about 536,000 people in local jails who have yet to be convicted of a crime. Much like Browder, these people are thrown into a traumatic environment that can have mental and emotional effects that persist long after their release. America’s legally innocent detainees are more than the entire prison population of every developed nation save for China, Brazil and Russia.
Unlawful pretrial detentions even cost legally innocent people their lives. An investigation by The Huffington Post reviewed every city and local jail in the country and found that the overwhelming majority of jail deaths were people who were legally innocent. People who stayed incarcerated simply because they didn’t have the funds to post bail for offenses they were not even convicted of.
A justice system that punishes a benighted class is not serving justice, its promulgating inequity. Effectively, considering people too poor for freedom. A society that makes freedom not only conditional but contingent upon personal wealth denies equal protection to a large subsect of the population who do not enjoy the luxury of disposable income.
The median bail amount levied at a felony defendant is approximately $10,000, according to a Council of Economic Advisers brief. Meanwhile, a survey by Bankrate finds that 57 percent of Americans do not even have enough money to cover an unexpected $500 expense. Money bail serves as a penalty for being poor.
Now, it’s imperative that the discussion not only focuses on the problems of money bail but also the solutions that can be implemented to reform the system. Approaches based on something other than a person’s ability to pay the price for freedom are already in practice in certain jurisdictions.
Currently, four states have banned for-profit bail: Kentucky, Oregon, Wisconsin and Illinois. These states access pretrial release based on risk and the assuredness of greater public safety based on the specifics of the jurisdiction and the defendant. After the assessment is complete, a release recommendation is suggested, and a multitude of options are presented.
For example, one county in Oregon, Multnomah County, has four release options that can be recommended after risk is properly assessed. If risk is considered excessively low a person is released on their own recognizance with a promise to return to court later. For those with moderate risk, they are referred to a Pretrial Supervision Program that supervises potential defendants on a case-by-case basis. People with high risk who are referred to a Close Street Supervision program. All people, from low to high risk, are monitored through a combination of home and work visits and phone contact.
Evidence suggests this system works. The state of Kentucky utilizes a similar system to Multnomah County, and the results have been promising. Court appearance rates rose from 89 percent to 90 percent after Kentucky did away with for-profit money bail; rates of re-arrest also decreased by a percentage point. While this is not a great benefit, it illustrates that money bail is not needed to maintain a system of responsibility and surety. In fact, it might have a small detrimental effect on both.
The ACLU’s Smart Justice campaign is expanding its bail reform and abolition efforts on both a federal and state level. The company’s integrated campaign effort includes litigation procedures, legislative advocacy and communication measures. The nonprofit hopes highlighting these injustices and the multinational corporations that profit at the expense of a person’s freedom will help reverse the ubiquity of money bail.
This country has long steered away from this idyllic view of being the city atop a hill for other societies to emulate. No, instead America has become that city’s duplicitous neighbor. One who forgoes the material well-being of a body politic to prioritize the profit margins of industry. In the words of Donald Glover, “this is America.” And we’d be wise to not let this injustice system catch us slipping: lest we be detained unlawfully.
You can learn more or donate to the ACLU on their website