The American Criminal Justice System is rife with problems – too many to enumerate here. One of the most glaring issues is the prominent use of the monetary bail system to keep people locked up in jail prior to their trial. The system, according to a Harvard primer on the subject, was originally intended to reduce the amount of harm inflicted on defendants, while still ensuring they would appear in court on the day of their hearing. Putting a price tag on release was a middle path allowing detainees a way of getting out of jail. The effects of this system, however, have been grave for those in detention, and profitable for the industry that has grown around cash bail.
A Life Affected
As described on Governing.com, a person can be put in detention for driving with a suspended license and for having unpaid tickets, and the bail can be set at $2,500 regardless of the economic background of the individual. Maranda Lynn O’Donnell was such a person. She couldn’t afford the fee for a bail agent, also known as a surety, who usually requires 10 percent of the total bond amount, or in this case, $250. O’Donnell had a kid at home and lacked family and friends who could afford to pay the fee. She, herself, had just started a job, so had very little money. She ended up spending three days in detention.
The Poorest Suffer
She isn’t alone. According to a 2013 report, “more than 50% of [New York City] jail inmates held until case disposition remained in jail because they couldn’t afford bail of $2,500 or less.” Additionally, according to a report entitled Detaining the Poor, 34 percent of the people being held in pre-trial detention are unable to afford bail and fall within the poorest third of society. The median yearly income for that group is $15,109.
While the poor suffer, the rich get richer. According to The Root, in 1990, 24 percent of released detainees paid their way out. Nineteen years later, in 2009, 49 percent were forced to pay bail. This has led to a burgeoning “market” of for-profit bail bond companies. A report, entitled Selling Off Our Freedom: How Insurance Corporations Have Taken Over Our Bail System, concluded that, between the bond agents and the 10 insurance companies underwriting the sureties, the industry brings in between $1.4 billion and $2.4 billion. The report notes that it is very difficult to determine the size and scope of the industry because very little gets reported on the pertinent tax forms.
States Push for Reform
In recent years, there have been efforts at the state level to reform the cash bail system. In New Jersey, for instance, a stringent formula was introduced, specifically to reduce the possibility of a defendant being put in detention. Under the new regime, there has been a 20 percent drop in pre-trial detentions. And in New Mexico, residents voted for the addition of a constitutional amendment setting certain requirements on cash bail. According to the Amendment, if a person can’t afford bail, they can file a motion for relief from posting bail.
Earlier this year, Texas Supreme Court Chief Justice Nathan Hecht touched on the issue of cash bail reform in his State of the Judiciary address, noting, “Courts in five counties use readily available risk assessment tools to determine that the overwhelming majority of people charged with non-violent crimes can be released on their personal recognizance without danger to the public or risk of flight.” He suggested that legislators employ this system at the state level. Legislators failed to pass a bill, but a federal judge in Houston has ordered the county to release impoverished inmates.
In Maryland, an appeals court introduced rules to lessen the scope of bail, excluding perpetrators of low-level crimes from the monetary bail system. And in Arizona, a criminal justice task force put forward measures to encourage judges to seek out alternatives to bail – specifically the task force asked judges to consider a person’s income level.
Of course, these changes aren’t happening without a fight from special interest groups and prosectors. Several lawsuits have been filed in New Jersey where bail bond sureties are all but extinct. Criminal Justice reform advocates hope the bail bond industry doesn’t prevail in its effort to undermine the widespread movement to change the monetary bail system.