The Social Costs of Money Bail
Illustration by Devin Finch
Take a moment to recall all the things you did between the ages of 17 and 20. Maybe you got your driver’s license, took the SAT, went to prom, graduated high school, applied to and started college, had a few “first” experiences. The teen years are lionized as the “golden” years in our culture.
Kalief Browder of New York City spent those years on Riker’s Island — one of the toughest, most notorious jails in the country — for allegedly stealing a backpack. Browder’s arrest was based entirely on one person’s testimony, that of the the alleged victim, which was delivered a full two weeks after the alleged robbery. Could the victim really be sure he identified the right child?
Over the course of several court appearances during those three years, Browder had a few opportunities to plead guilty to lesser charges and be released, but he maintained his innocence, refusing to plead guilty to a crime he claimed he didn’t commit. He contested the charges. He demanded his day in court, per his constitutional rights. So, unable to pay the $3,000 bail, he stayed behind bars, awaiting trial, for more than 1,000 days as a legally innocent person — and over 800 of those days he spent in solitary confinement.
Two years after his release when the case was finally thrown out, still haunted by his experiences on Riker’s and feeling left out of the community of friends who had moved on with positive developments in their lives, Kalief Browder finally succeeded in the last of his suicide attempts. He was 22.
Closer to home, we are all familiar with the case of Sandra Bland. Bland was stopped for allegedly failing to signal a lane change and subsequently jailed for refusing to allow a police officer to bully her. Unable to post the $500 bail, she spent the weekend in Wharton County jail and was found dead in her cell days later, also of an apparent suicide.
I cannot stress enough that neither of these individuals had been convicted of any crime for the duration of their lockups. Our constitution guarantees a presumption of innocence until proven guilty. Still, if you read the comments below a Houston Chronicle article about the 55 people who died while in Harris County custody for want of bail funds between 2009 and 2015, you will see callous statements repeating the adage, “If you can’t do the time, don’t do the crime.”
The truth is, if these people could afford to post bail, they would be out, free and able to defend their cases within 24 hours. Instead, a report by the Prison Policy Initiative finds that a staggering 99% of growth in the jail population in the past 15 years has come from pretrial detention. On any given day in the US, of the 646,000 people locked up in jails (not counting state and federal prisons, just jails), 70% have not been convicted of a crime, and that 70% is driving the 99% of the growth of the jail population. (70% is the nationwide average — in Harris County the number was 76% in 2015.)
But then again, from a different perspective, money bail might be working exactly as intended. According to a recent New York Times article, “bail is the grease that keeps the gears of the overburdened system turning.” With 70% of the jail population locked up merely for their inability to make bail as they await their day in court, whatever fragile life they have built for themselves on the outside crumbles. This reality, coupled with the horrors of captivity, applies pressure to these accused to plead guilty, just so they can hurry up and go home, saving courts the time and expense of taking weak cases for petty crimes to trial.
“If even a small fraction of those defendants asserted their right to a trial,” the New York Times continues, “criminal courts would be overwhelmed. By encouraging poor defendants to plead guilty, bail keeps the system afloat.”
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Less than two weeks ago, my friend and I received tickets for being in a New York City park after dark. We were walking back to my place from a restaurant two blocks from my house when we spotted a bench and stopped to smoke a cigarette. This “park” boasts no grass or trees, let alone any signs indicating that it’s closed after dark, so we really had no way of knowing we were in violation of any law.
Neither of us had any outstanding warrants, so we were written tickets for a $15 fine and allowed to leave, but that could easily change soon. As the officers sent us on our way, they told us that we could pay our fines online, but not until the paperwork was posted online, which would take two weeks. That gives us two weeks to forget that this petty “infraction” ever occurred, two weeks to lose the pink slip of carbon paper with all the details on it. If we do not admit guilt and pay online or show up in court at 9:30 am on August 23, warrants will be issued for our arrest.
Of course, being working professionals, it’s probably a better use of our time to just pay this minor ticket and be done with it, but on the other hand, we both feel pretty strongly that we did nothing wrong. If we were indeed in a restricted area, why were no signs posted? The ticket itself does not name a “park” where the “incident” occurred, rather it says, “opposite 380 E. 141st St.” And what about those who are not “working professionals?” What about all the people who are barely scraping by, who may not have a stable address, let alone easy internet access and a credit card for online transactions? Or what about all the people who might already have warrants or an extensive record of other such “petty crimes,” who would not have the luxury of being able to walk away from such an encounter with just a ticket? Those people would have been hauled off to jail — just for smoking a cigarette on a bench beside a sidewalk after dark — and be subjected to money bail to secure their release or otherwise sit in jail until that August 23 court date. They would likely lose their job and possibly lose their apartment; their families would have one less wage earner and caretaker of children and the elderly, and anybody with any immigration concerns might even see themselves deported, despite not having been convicted of a crime and therefore remaining at least legally innocent — all at great expense to taxpayers.
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“Sittin’ in the Harris County Jail,” goes the classic Houston rap song, “spending all my little time. / I’m not driving fancy cars I’m just staring at bars and I’m about to lose my mind.” It’s funny, because the singer sings off-key and talks about the “funky toes” in the shower, but Harris County Jail is the spotlight again, and the reasons are hardly humorous.
In early June, Salon published an article called “Criminal Injustice in Texas,” which discusses the system of money bail, how it destroys lives, costs us all too much, and ought to be replaced with better ways of ensuring that defendants keep their court dates. It costs taxpayers $75 per person, per day to lock people up, and 77% of the people in the Harris County jail system are in there for pretrial detention — that comes out to over $500,000 paid by taxpayers every day to lock up innocent people.
The eighth and fourteenth amendments to the Constitution of the United States promise all citizens equal protection under the law, the right to due process, and freedom from excessive bail or cruel and unusual punishments. As the New York Times notes in the article cited above, the practice of using money bail was started in Middle Ages England as a way to help legally innocent people — and we are all presumed innocent in the eyes of the law until proven guilty beyond a reasonable doubt — by sparing them the punishment of incarceration unless and until they were actually found guilty at trial, as well as to allow them to work on their defense.
Something must be done to change this system, but too many people fear that releasing the indigent on their own recognizance will result in recidivism — no judge, especially those holding elected office, wants to release an alleged criminal only to have him or her commit another crime — but there are measures courts can take to reduce this possibility. Different municipalities are trying out different solutions. In the Bronx and Brooklyn, non-profit bail funds have been set up to help those who lack the funds, and they can claim that 96% of the people in their program show up for their court dates, which is higher even than the rate for people who pay their full bail out of pocket. Washington D.C. has done away with money bail entirely, opting instead for a flight-risk assessment program that allows many people out on unsecured bonds which don’t require people to pay up front but rather fine them if and when they miss a court date.
Experts agree, however, that addressing the crisis created by the often unfair system of money bail is just one step in criminal justice reform. Programs such as Houston’s “Cite and Release” must be implemented at a larger scale to put an end to life-wrecking arrests and unconscionable detentions that cost us all too much. The present system is no good for defendants who are trying to straighten up their lives, no good for their families and dependents, no good for society at large when they lose another productive member to petty infractions such as open containers in public (or often no infraction whatsoever), and costs taxpayers entirely too much.