Our On Bail !FULL!
These individuals are victims of our system of cash bail. In a cash-bail system, the court permits an individual charged with a crime to go free pending their trial. In exchange, the court sets a cash amount, bail, that the person must pay to the court to ensure their appearance at trial. In this way, the cash bail operates as a kind of collateral: when the person appears, the court returns the money. If the person fails to appear, though, the court keeps it.
Our On Bail
All this is why the bail bond system has been subject to such searching critical treatment in recent years. Commentators and advocates have argued that the system violates constitutional equal protection, due process, and the Eighth Amendment prohibition on excessive bail, among other things, including international human rights. The system runs afoul of basic notions of fair play and equal justice, and violates these fundamental precepts of the rule of law.
Jurisdictions across the country are now rethinking their approaches to the bail bond system to better align with the rule of law. Many jurisdictions are looking to reform or replace their existing bail bond systems with more targeted approaches to achieve their objectives. For example, some are considering a presumption against pretrial detention, placing the burden on the prosecution to justify any bail based on the particular defendant, their alleged crime, their actual flight risk, and their actual danger to the community. Some are considering more effective ways to protect against flight, for example, by simply sending reminders to individuals about their court dates.
Just this year, Illinois became the first state to adopt statewide bail bond reform. In landmark criminal justice reform legislation, the state gradually eliminates the use of cash bail and ultimately ends it on January 1, 2023. In lieu of bail, a judge must impose the least restrictive conditions on a defendant that are necessary to ensure their appearance in court. Under the legislation, courts can also provide reminders of court dates and even transportation to court appearances.
One reason that the unconvicted population in the U.S. is so large is because our country largely has a system of money bail,3 in which the constitutional principle of innocent until proven guilty only really applies to the well off. With money bail, a defendant is required to pay a certain amount of money as a pledged guarantee that they will attend future court hearings.4 If the defendant is unable to come up with the money either personally5 or through a commercial bail bondsman,6 they can be incarcerated from their arrest until their case is resolved or dismissed in court.7
While the jail population in the U.S. has grown substantially since the 1980s, the number of convicted people in jails has been flat for the last 15 years. Detention of the legally innocent has been consistently driving jail growth, and the criminal justice reform discussion must include a discussion of local jails and the need for pretrial detention reform. This report will focus on one driver of pretrial detention: the inability to pay what is typically $10,000 in money bail.9 Building off our July 2015 report on the pre-incarceration incomes of people in prison, this report provides the pre-incarceration incomes of people in local jails who were unable to post a bail bond. This report aims to stimulate a more informed discussion about whether money bail makes sense, given the widespread poverty of the people held in the criminal justice system and the high fiscal10 and social costs of incarceration, and offers recommendations for how states and counties can move beyond unnecessary pretrial detention.
We find that most people who are unable to meet bail fall within the poorest third of society.11 Using Bureau of Justice Statistics data, we find that, in 2015 dollars, people in jail had a median annual income of $15,109 prior to their incarceration, which is less than half (48%) of the median for non-incarcerated people of similar ages.12 People in jail are even poorer than people in prison13 and are drastically poorer than their non-incarcerated counterparts.
Few jurisdictions have tried to make it easier for more defendants to be released pretrial through other cash alternatives or deposit bonds. For example, in Illinois, all defendants who have a bail bond amount set are automatically eligible to pay a 10% cash alternative to the court. (A similar practice in Massachusetts has effectively eliminated the private bail bond industry.) If the defendant shows up for court, the money is refunded, except for a small administrative fee.
In New York City, a third of cases had a cash alternative in 2010, which most commonly offered a 50% discount on the full bail bond amount. One study found that a minimum cash discount of 60% would make the cash alternative in New York City competitive with the use of commercial bail bondsmen or agencies. At discounts below 60%, defendants were still likely to use commercial bail bondsmen.
Examining the median pre-incarceration incomes of people in jail makes it clear that the system of money bail is set up so that it fails: the ability to pay a bail bond is impossible for too many of the people expected to pay it. In fact, the typical Black man, Black woman, and Hispanic woman detained for failure to pay a bail bond were living below the poverty line before incarceration. The income data reveals just how unrealistic it is to expect defendants to be able to quickly patch together $10,000, or a portion thereof, for a bail bond. The median bail bond amount in this country represents eight months of income for the typical detained defendant.
Eliminate the use of money bailToo many jails are detaining people not because they are dangerous, but because they are too poor to afford bail bonds. One study of felony defendants nationwide found that an additional 25% percent of defendants could be released pretrial without any increases to pretrial crime. The study found that many counties could safely release older defendants, defendants with clean records, and defendants charged with fraud and public order offenses, all without threatening public safety.
Increase funding of indigent criminal defense Most defendants are too poor to afford a private attorney to represent them. Further, while the Supreme Court has affirmed the constitutional right to counsel at initial appearance,24 in reality, only 10 states and D.C.25 provide counsel at initial appearance. A study of defendants in Baltimore found that the failure to provide legal representation when bail bonds are determined was a leading reason for lengthy pretrial detention. Defendants who were represented had a median jail stay of two days while unrepresented defendants had a much longer median jail stay of nine days.
Reduce the high costs of phone calls home from prisons and jails and stop replacing in-person jail visits with expensive video visitation Phone calls home from prisons and jails and increasingly common remote video visits typically cost $1 per minute. The high prices of these communications products act like a regressive tax, charging the people who have the least the most to keep in touch. As a result, more than a third of families of incarcerated people fall into debt to cover phone and visitation costs. And it is these same family members who defendants often turn to when trying to scrape together money for bail bonds26 or other criminal justice fines and fees.
This is not the first report to address the incomes of incarcerated people. The Bureau of Justice Statistics (BJS) collects this data periodically (most recently in 2002 with another survey scheduled to begin in 2018) but does not routinely publish the results in a format that can be accessed without statistical software. The BJS last published a complete analysis of the survey results in 2004. Last year, we produced a report on the pre-incarceration incomes of people in state prison. This report focuses on the pre-incarceration incomes of people in local jails, and, even more specifically, on the incomes of people incarcerated in local jails who had the opportunity to post bail, but could not meet it. This report included both convicted (people who were detained for the entire pretrial period and then sentenced to jail time) and unconvicted people because only looking at the unconvicted population detained pretrial would have been too small of a sample size.
This report was not intended to make the point that incarceration causes poverty, although there is extensive research on that topic. Because the Prison Policy Initiative is regularly asked about the role that poverty plays in who ends up behind bars, this report is aimed at answering a different question: are incarcerated people poorer than non-incarcerated people? In particular, we often hear that 80% of defendants nationwide are indigent, but we wanted to be able to put numbers to the problem in the hopes of furthering the conversation on the growth of pretrial detention and the urgent need for bail reform.
The 2002 BJS survey asked incarcerated people what their personal monthly income was the month before their arrest. First, the data in this appendix is presented in monthly incomes and has not been adjusted for inflation. Second, the data in this appendix is presented for people in local jails in general. In this report, we focus on the people in local jails who had the opportunity to be released pretrial but were unable to meet the conditions of bail.
Daniel Kopf is a data scientist in California and writer at Priceonomics who has been a member of our Young Professionals Network since February 2015. He has previously written about bail and has co-authored several exciting statistical reports with the Prison Policy Initiative: Prisons of Poverty: Uncovering the pre-incarceration incomes of the imprisoned, Separation by Bars and Miles: Visitation in state prisons, and The Racial Geography of Mass Incarceration. He has a Masters in Economics from the London School of Economics. Dan is on Twitter at @dkopf 041b061a72