Is It Time for Courts to Stop Charging Bail?
WHY YOU SHOULD CARE
A system that lets the rich walk free and shackles the poor could be changing.
By Nick Fouriezos
Every time New Orleans public defender Nia Weeks saw her 18-year-old client in court, she could see the fear in his eyes. He had been caught with a gun after already having one unlawful possession of a firearm on his record. Now he was awaiting trial in the same jail that housed many of the people he felt were trying to kill him. Weeks was trying to get him out so that they could proceed with his defense without him constantly looking over his shoulder. The teenager ended up spending five months behind bars because he couldn’t afford bail, released only once his case finally ended with a plea agreement.
Weeks’ client was far from an exception. There are nearly half a million people incarcerated across the U.S. without having been convicted of a crime, many of them because they can’t pay for their release. For decades, cash bail has faced criticism for allowing those who can pay to walk free while the poor remain imprisoned, at risk of losing their families, homes and jobs. Now a wave of criminal justice reformers has begun to change that.
An unprecedented explosion in so-called bail funds, organizations that post bail for poor people, is promising to reduce the inequity built into the cash bail system. The Community Justice Exchange, a loose collection of bail funds, has seen its membership increase from 15 funds in 2016 to around 50 today. Some carry tens of thousands of dollars, bailing out a couple of people each week; others have millions of dollars at their disposal. As the accused have their day in court, some of that money is returned, partially replenishing the fund.
That’s just the first step. These justice system reformers are working toward the abolition of cash bails. And public consciousness is moving with them: 57 percent of Americans favor ending the practice of jailing people who cannot afford cash bail before trial in all but extreme cases, according to a May 2018 voter survey by the Charles Koch Institute.
The idea of poor people sitting in jail because they are poor is something that resonates.
Pilar Weiss, director, Community Justice Exchange
Politicians have also begun seeking the first meaningful reform of the cash bail system in three decades. In August 2018, California became the first state to end cash bail, after its appellate court ruled it unconstitutional earlier in the year. New York may soon follow after Gov. Andrew Cuomo began 2019 by asking the state legislature to end cash bail for most minor crimes. Last July, Vermont Sen. Bernie Sanders and New York Sen. Kirsten Gillibrand co-sponsored the End Cash Bail Act, which would prevent money bail in federal cases while providing grants to states that find alternative pretrial models. That followed a 2017 bipartisan bill backed by Democratic Sen. Kamala Harris and Republican Sen. Rand Paul to reform the bail system, although it didn’t go so far as to ban the practice. Sanders, Gillibrand and Harris are all expected to run for president, meaning bail will be a major point of discussion in the 2020 Democratic primary.
“People are grasping the narrative of economic inequity,” says Pilar Weiss, director of the Community Justice Exchange. “The idea of poor people sitting in jail because they are poor is something that resonates.”
A majority of the legislative efforts to end or reduce the influence of cash bonds have come from Democrats in the past two years. But with Republicans controlling the House for a decade between 2008 and 2018, those efforts have so far remained just that. With Democrats regaining control of the House in the December midterms, that might change, says Rep. Ted Lieu of California, a Democrat who introduced a No Money Bail Act in the House of Representatives in 2016 and 2017 that would cut off federal grants to states that don’t comply within a few years.
“Now that we’re the majority, I think we have an opportunity,” says Lieu.
Ending cash bail doesn’t come without concerns. In California, critics worry about bias in the risk assessment tools used to help judges determine whether to grant pretrial release. A report published last summer showed that a similar Maryland program failed to decrease the pretrial jail population: Instead, it actually led to more people being detained at the judges’ discretion, without any option for pretrial release even if they could rustle up money to post bail. Meanwhile, mostly conservative critics of reform efforts say ending cash bail limits one of the major incentives for the accused to show up in court. Public research is mixed: In some jurisdictions, court attendance has held steady, but in others, it has dropped.
When Democrat Stacey Abrams campaigned for Georgia governor on a plan to end cash bail, her Republican opponent, and eventual winner, Brian Kemp pounced with a tweet noting that nearly 2,000 more people didn’t appear for their court date after Atlanta ended cash bail. “There can always be modifications, there can always be reforms, but no, I don’t support abolition,” says Rep. Peter King, R-N.Y. Another challenge for cash bail funds is that the average cost to post bond greatly varies by state, from $500 in one to $50,000 in another, Weiss says.
Even though some of the people temporarily released will commit crimes, there’s no logic in discriminating among them on the basis of their wealth, asserts Lieu. “There is no evidence linking how dangerous you are to how much cash you have on hand,” he says.
Weeks, the public defender, now heads the New Orleans Safety and Freedom Fund, which has bailed out more than 200 people in less than two years. New Orleans and the state of Louisiana have sought to reduce prison populations, and court commissioners are setting lower bails. And Weeks’ young client with the gun charge? She was able to work with the court to let him serve his last month on a work-release program that had him learning culinary skills at Café Reconcile, a job training nonprofit — at least during the day, he wasn’t in a jail cell just because he couldn’t afford freedom.