The need for bail reform has been the subject of lengthy and often heated discussions for as long as I can remember. A 2017 American Civil Liberties Union (ACLU) report estimated that the nearly $14 billion-a-year bail bond industry—underwritten by nine large insurance companies including some owned by multinational corporations—perpetuates a system in which people who cannot afford bail remain in jail until they accept a plea deal or take their case to trial. The report further determined that “nearly 450,000 people, which is approximately 70 percent of all people in jail on any given day, sit in jail though they remain innocent in the eyes of the law.”
Over the past several decades, attempts at bail reform legislation have frequently transpired in the form of amendments to existing legislation or the introduction of new language to create new legislation. However, the various legislative acts have collectively fallen short in addressing the singular issue of excessive bail that is associated with the cash bail system and, specifically, how this cash bail system adversely impacts the poor.
Excessive bail is a major issue for low-level, non-violent, non-serious misdemeanor defendants who pose little threat to public safety. Even with the 10 percent cash option—which allows defendants to use their own money to post a fraction of the full bond amount set by the judge—the cost still remains too high for individuals of lower economic status.
Problems Defining Excessive Bail
The cash bail system is essentially an insurance policy, which provides a financial incentive for released defendants to attend scheduled court proceedings or risk losing the funds they used to post bail, as well as the possibility of additional criminal charges.
Bail amounts are primarily based on the seriousness of the alleged offense, flight risk, prior criminal history, and the risk to the community if the accused would be released, so it is subjective and largely dependent on the judiciary. Furthermore, there are no established guidelines for minimum and maximum bail amounts as there are with sentencing guidelines. While we entrust our judiciary to make the most appropriate, impartial decisions based on the facts of each case, the cash bail amount imposed on the accused can significantly vary between judges and jurisdictions.
The Eighth Amendment to the United States Constitution provides some limitations by stating “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This clause, which also extends to individual states, is known to most people, even to those outside of the public safety profession. However, the word “excessive,” when used in constitutional context, is difficult to define, and albeit defend, because it is used ambiguously. In other words, what may be considered an excessive cost to one person may not be excessive to another. For individuals from low-income, disadvantaged backgrounds, even lower bail fees can be prohibitive.
To illustrate why this topic warrants attention, a comprehensive 2010 Human Rights Watch report, using New York as a case study, revealed the following:
- Among defendants arrested in 2008 on non-felony charges and given a bail of $1,000 or less, only 13% of defendants were able to post bail at arraignment.
- If you are in jail, the power has shifted to the prosecutorial arm of the justice system, and they (the prosecution) can pressure you to make a plea. If you are out of jail, the power dynamic is completely different.
- Guilty pleas account for 99.6 percent of all convictions of New York City misdemeanor defendants.
- Studies going back as far as the 1960s show that defendants who are held in jail and unable to post bail are offered harsher plea deals than similarly situated defendants who are out on bail.
- 84 percent of released defendants show up for all their proceedings. When you consider that missed hearings often come down to an unaffordable bus ticket, the chances of indigent defendants going on the lam are pretty much non-existent.
When Bail Can Be Denied
Although the Eighth Amendment clearly states that defendants have a right against excessive bail, it does not guarantee the right to bail in general. Preventive detention, for instance, dictates that bail can be denied to a defendant accused of certain crimes or when certain conditions are present. While this is not a complete list, these tend to be the most common circumstances when bail can be set, but the accused cannot be released, according to the U.S. Bail Reform organization:
- A probation hold
- An immigration hold
- The accused is awaiting transfer to another jail
- The accused is already convicted with a secondary open charge
- The accused is awaiting hearing on new charges
- The accused is a flight risk
- The accused is a risk to public safety or national security
The District of Columbia Court Reform and Criminal Procedure Act of 1970 was the nation’s first statute allowing judges to consider a defendant’s dangerousness to the community, in addition to flight risk, as a reason for denying pretrial release. Further public safety considerations were added to the Bail Reform Act of 1984 and upheld in United States v. Salerno (1987) and are now part of most state statutes.
Flight risk has now become a common reason for denying pretrial release. It is often the case that a defendant with stable ties to the community (such as an established home, family, and job) is viewed as someone less likely to flee than someone with weaker ties, including the lack of financial assets in the form of a savings account, home ownership, and so on. However, it should be noted that I could not locate a single research study supporting the criminal justice system’s view that a lack of financial assets equates to a potential flight risk.
Bail Policy Reform is Needed
Throughout history, discriminatory legal practices have always affected the poor, particularly those from African American and Latino communities, who lack the financial and social means to post bail. Few, if any, from disadvantaged communities qualify for ROR (Released on Own Recognizance), which in my experience is only offered to those with stable ties to the community and not considered to be a flight risk or danger to society.
The book, “The Rich Get Richer and the Poor Get Prison,” comes to mind since the authors provide a historical review of how the American criminal justice system disparately treats the poor at ALL stages of the criminal justice system, from arrest to the death sentence. While racial disparity is an issue worthy of further discussion, in my opinion it is the indigent status of the accused that warrants the most attention.
If you are poor, the odds are unlikely that you will be able to post bail, and therefore you will remain incarcerated even though you are “innocent until proven guilty.” The Bureau of Justice Statistics reports that 90 to 95 percent of all misdemeanor convictions are the result of plea bargains in which the accused pleads guilty and serves time for a lesser offense, perhaps of a different category, one that they may not have actually committed, in exchange for vacating other charges. Many choose plea bargains over taking their case to trial because jury decisions are largely unpredictable; therefore, most defendants avoid the risk.
Even slight policy changes in the way of bail reform can produce meaningful changes and reduce the United States’ overly dependent reliance on incarceration in combatting crime. Some other positive changes would include reducing the jail population, minimizing the stigma of incarceration, helping to keep the defendant’s family intact, helping them obtain gainful employment, and allowing the defendant to seek treatment for substance abuse or mental health issues.
About the Author: Dr. Michael Pittaro is an Assistant Professor of Criminal Justice with American Military University and an Adjunct Professor at East Stroudsburg University. Dr. Pittaro is a criminal justice veteran, highly experienced in working with criminal offenders in a variety of institutional and non-institutional settings. Before pursuing a career in higher education, Dr. Pittaro worked in corrections administration; has served as the Executive Director of an outpatient drug and alcohol facility and as Executive Director of a drug and alcohol prevention agency. Dr. Pittaro has been teaching at the university level (online and on-campus) for the past 15 years while also serving internationally as an author, editor, presenter, and subject matter expert. Dr. Pittaro holds a BS in Criminal Justice; an MPA in Public Administration; and a PhD in criminal justice. To contact the author, please email IPSauthor@apus.edu. For more articles featuring insight from industry experts, subscribe to In Public Safety’s bi-monthly newsletter.