Cash Bail 101

Systematic Effects on Low-Income Neighborhoods

Starmanie Jackson, a single mother of two, was seized during a traffic stop. While in custody, police found a three-year-old warrant prompting a speedy arrest. Within minutes of her hearing, bail was placed at $700, despite being unable to afford it and having no legal representation. As a result, Ms. Jackson lost her employment since she was unable to inform her job of the situation. She was jailed for a week because she could not afford the bail. Ms. Jackson is just one example of an individual who lost their job, custody of their kids, and housing because she could not afford bail.

It is quite easy to be apprehended, despite what most people may believe. This is because police do not have to be “convinced” that you are guilty. If there is sufficient evidence for the police, regardless of the situation, you can be arrested and convicted. 

What is cash bail?

Cash bail is a price placed on civilians to ensure their release from jail. The accused will be detained until payment is made.  This collateral is an agreement that the arrested person will return to court. A judge typically places the bail after the initial arrest. There are seven types of bonds that each have a monetary value. Surety, property, citation release, recognizance release, federal, immigration, and cash bonds are all forms of bail. 

Cash bail should be abolished because it is unconstitutional. Bond and insurance companies are businesses and are not a part of the legal system. These companies violate equal protection rights under the 14th amendment and the act of prohibition under bond also violates the 8th amendment.

Bond companies operate to make a profit and not to help guarantee people’s freedom. While this system works for those with access to money, the multibillion-dollar bail industry does not provide adequate resources for defendants who cannot afford bail. There is a significant disparity in the price that bail can be set at, ranging from under $2,000 to around $500,000.

Additionally, there are incentives to set higher bails to ensure a profit.  However, higher bail amounts do not increase public safety. 

Many judges set bail without considering if the defendant can pay for it. As a result, one in six people in jail has yet to be proven guilty.  Many people lose their jobs, custody of their kids, and housing because they wait for trials for nonviolent offenses and cannot afford to pay their way out.  There are a lot of factors that can cause an arrest, and a warrant is the most common factor that causes a lot of people to be sentenced. Studies show that higher bail bonds are a primary driver for jail population growth. About 600,000 people step into a jail cell every year, and people are put in jail 10.6 million times a year.  One in four people arrested will return to prison within the same year. 

The bail system was created in 1789, the same year the Bill of Rights was implemented. Since then, this billion-dollar industry has charged more than 36% in additional fees to clients for minor offenses. 

On top of all of this, not all people released on bond are analyzed to see if they are a danger to society under our current system.  In many instances, people who have a violent past have continuously been allowed back into society. If the Founding Fathers put this system in place for the greater good of the community, why do the people who are not a threat suffer the most? And, why are most of these people Black and brown? 

Unfortunately, bail amounts have also doubled over the past 20 years.  This means that many people sit in jail while awaiting their trial. However, pretrial detention is also a significant factor in rearrest. Yet, being released on pre-trial did not increase the defendants’ likelihood of committing crimes. In Mississippi, bail agents can charge 10 percent on a bond valued at 100. They also can tax $50 on each bond. All of these extra fees are profits for the bail agents.  Once a bond is paid, the amount is typically in the custody of the court or the sheriff. The money the courts make through bonds is then distributed through the city and county. This money is spent on general government expenditures. Instead of relying on the bonds system, a wealth tax can replace or even provide more money. Rather than forcing poor and working-class people to pay for government programs through bail, placing a higher tax on businesses and the wealthy could help provide funding.

Many people argue that bail is necessary for public safety. In  New York, for example, after disbanding its bail system, many arrested people began to trend online. With their charges plastered on social media, it started a conversation regarding public safety and raised the question: Is cash bail good for public safety? Regardless of your financial status, the requirements regarding the bail amount are determined by numerous factors. There becomes an overlap of due process principles and equal protection. The process of waiting for a trial is very lengthy. Your court date can continuously be pushed back, and there is no way for you to organize your affairs.  Regardless of the extent of the crime, as long as you can post bail, you are free to go. This structural linchpin divides people based on wealth and not safety. 

There is no cash bail in the District, and a risk assessment algorithm determines a person’s threat to public safety. The algorithm gives judges a score that determines how likely the accused will be to return to court. Unless the defendant is dangerous or committed a severe felony, about 85% of defendants are released without bond. This assessment determined 99% of released defendants administered back into society have not been a danger. The success comes from local and state bail statutes outlining detention eligibility, restricting cash bail usage, and providing supervision options that match risk levels. 

Cash bail is a flawed system that does not protect the people. It is a system constructed around monetary gain.

Regardless of the severity of the crime, you can simply buy your way out. The conversation then changes from safety to wealth. The Bill of Rights targets incarceration as a means to protect criminal defendants. However, the cash bail system hinders the public by accumulating taxpayer money.

Furthermore, a person’s release based on income is an infringement upon the 14th amendment. Bail is not a significant factor in aiding crime. Environmental factors, poverty, revenue, and other disadvantages lead to criminalization. Rather than investing in pretrial detention, increased investment in violence prevention or community services can have a more positive effect. The focus should be made on prevention.   

For more information or resources to end cash bail practices check out some of these organizations.  DMV Bailout ​​has a locally focused initiative called End Money Bail you can find more information here.  Harriet’s Wildest Dreams has several programs and you can find more here.  Maryland 4 Justice Reform, here, has the Court Objection Project which is designed to educate people on the pretrial system while also changing the reliance on bail. These organizations provide ideas for alternatives to bail along with means to better assist defendants.