Roosevelt Institute | Cornell University

The Broken Bail System

By Samantha LustigPublished November 5, 2017

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If you were to get arrested today, your path through the criminal justice system would be heavily determined by your financial situation. Whether or not you'll spend the next few days or weeks in jail depends completely on your ability to post bail. Thousands of people every year are criminalized for their inability to pay these fees, unfairly trapping America's poorest citizens in the prison system.
By Samantha Lustig
11/5/2017

If you were to get arrested today, your path through the criminal justice system would be heavily determined by your financial situation. Whether or not you'll spend the next few days or weeks in jail depends completely on your ability to post bail. Thousands of people every year are criminalized for their inability to pay these fees, unfairly trapping America's poorest citizens in the prison system.
Ferguson came under the national spotlight after the Department of Justice released a report on the Ferguson Police Department in the wake of the shooting of Michael Brown in August 2014. This brought attention to a number of issues present in the criminal justice system, with the faulty bail system being one of the most prominent. This has become problematic not only in Ferguson, but also in cities and counties all over the country.
Bail is a fixed sum of money charged to people who are arrested in order to ensure the defendant appears at trial. Regardless of the outcome of the case, the government will return the full amount as long as the defendant makes all of the required court appearances. The majority of the country uses a fixed cash bail system, where defendants who cannot pay their bail are held in jail for a minimum of three days. In these cases, low income individuals are punished before they even make it to trial.
People who cannot afford to post bail are forced into two equally unpleasant options. One is to pay a fee of around 10% of the posted bail to a commercial bail bondsman who will post bail for them, but this money will never be returned. The underwriting of these bail bonds by insurance companies has become a hugely lucrative $14 billion industry that profits off of the poverty of others. If someone doesn't want to lose money to a commercial bondsman, their only other option is to stay in jail. However, the lives of low income people in particular are the most disrupted by jail time. Missing even just a couple days of work can be economically devastating for defendants, as it impacts their ability to pay rent or support their families. In Ferguson in particular, late fees and surcharges were added to the original bail fees, trapping people in a cycle of debt and incarceration.
A huge proportion of the incarcerated population is affected by this issue; the majority of inmates are classified as pretrial, meaning they have yet to be formally charged and/or convicted with a crime. A study done on the New Jersey prison system found that 38.5% of the prison population was in jail only because they were unable to pay the posted bail, with 12% of the incarcerated population unable to pay $2500 or less. The government ends up spending roughly $14 billion a year housing people who are unable to post bail. Imprisoning so many people for something as simple as being unable to pay a few hundred dollars means that taxpayers are also expected to pay to imprison people who have yet to even be convicted of a crime.
On the other hand, judges argue that bail is necessary to ensure that defendants show up to their court dates, and individual judges have a lot of discretion over how high the posted bail should be in a particular case. While excessive bail is unconstitutional under the 8th amendment, the word ‘excessive' is not clearly defined. The Supreme Court has not taken a case related excessive bail since Stack v. Boyle in 1951, where the court held that bail cannot be punitive and should only be high enough so that the defendant appears in court. Although it's important for this issue to be addressed again on a constitutional level, it could be decades before another relevant case makes it to the Supreme Court.
Low income people who get arrested end up exploited both by the state and the multibillion dollar bail bond industry that profits off of them. The burden that bail places on them is too steep of a penalty to impose, especially before a conviction is ever made. Local court systems should be taking into account an individual's income and financial situation before deciding on a bail amount, ensuring that no one is ever punished for being poor.