Bail Reform: Is it Time to Bail Out?

Here’s how bail works: after being arrested for a crime, you remain in custody unless the judge is confident you will show up in court for your trial, and that you are not a danger to others. Check those boxes and you can buy your way to what may be temporary freedom.

On the surface, this sounds like a great plan. Our prisons are overcrowded and there is no point in holding someone in custody for a minor charge. Bail helps to keep the penal process moving more smoothly, doesn’t tie up limited space in custodial facilities, and gives defendants a chance to make arrangements with their jobs and loved ones if a prison sentence is likely.

What could go wrong?

As of 2017, 12.3 percent, or 39.7 million Americans, were living in poverty and the median household income was $61,372. The average American aged 35-65 carries more than $130,000 in debt.

So we have nearly 40 million Americans who can’t afford bail or even a bail bond. Then you have the average American, who is getting by but without a lot of money for extras – like a $10,000 bail or a $1,000 bail bond. Now add to that the unfortunate reality that the American justice system is not as just for people of color and those living in poverty, and the problem with bail becomes very clear.

In February 2018, VICE ran a heartbreaking story about how the bail system often fails the disenfranchised. Sixteen-year old Kalief Browder stole a backpack and was charged with robbery, larceny, and assault. Unable to pay the $3,000 bail set by the judge, he was sent to Rikers Island – even though he had yet to be convicted of the crimes. Thankfully his case was dismissed – but tragically it took three years for his case to reach court. He was nearly 20 when he was released. He didn’t graduate high school because he didn’t have the chance. All the things 16-year-old teens should be doing, like exploring careers, going on dates, building a social life, and preparing for college, were denied to Browder. He killed himself in 2018.

But, I hear you say, he stole! He assaulted someone! Clearly that demands punishment! Of course it does. But let’s stack Browder’s case against that of Ethan Couch. Couch’s lawyer’s plea of affluenza helped him avoid jail time despite the fact that his impaired driving cost the lives of four people. When Ethan committed that crime, he was 16 years old.

What’s the major difference between Browder and Couch? Browder was poor and black. Couch was rich and white.

This is not an isolated case of how the system unfairly targets those living in poverty and people of color. In the same VICE article, the co-director of Law for Black Lives, a national-wide network of lawyers, legal workers, and students focused on empowering the Black Lives Matter movement, said this of the bail system: “It impacts black folks about twice the rate as it impacts white folks. Black men are twice as likely to have a bond set on them, and the bond is often twice as high for the same crime.”[1]

The Intercept, a publication dedicated to fearless journalism, called out the bail issue in its 2016 article, How the High Cost of Justice Pushes the Poor Into Prison. Brilliantly written by Alice Speri, the article pointed out that “37 percent of those held in jail made less, annually, than the median bail amount of $10,000. For the average jail detainee, that’s about eight months of income.”[2] Speri also cited a Prison Policy Initiative report that called high bail the “largest factor driving pretrial incarceration.”

Does this mean that it is time to do away with bail? Of course not. Bail has some positive attributes, and it wasn’t designed to be at the center of the controversy in which it now finds itself. However, it is long past time to find a solution to the underlying issues that have pushed bail into the spotlight. Poverty, disenfranchisement, lack of education, racial biases – these are the driving forces behind our overcrowded prisons and laborious justice system. Instead of functioning like a well-oiled machine, it’s clogged up by these problems and grinds to a halt. For the people who can’t buy their way out, being stuck in the system can ruin their lives.

Bail is a huge problem that affects many people in the United States. Failure to pay bail can mean being incarcerated for years, even without a conviction. It’s not time to bail out. It’s time to add bail to the long list of items that so desperately need reform in a system that is punishing as many innocents as it is the guilty.

Christopher Zoukis, author of Federal Prison Handbook, Prison Education Guide, and College for Convicts, is the Marketing Director of Brandon Sample PLC. He can be found online at https://sentencing.net, https://compassionaterelease.com, and https://clemency.com.

[1]https://impact.vice.com/en_us/article/9kzmk8/americas-broken-cash-bail-system-is-criminal-justice-gone-terribly-wrong

[2]https://theintercept.com/2016/05/13/too-poor-for-justice/