How Cash Bail Disenfranchises People Of Color And Makes Our Criminal Justice System Inherently Unjust
Have you ever taken a moment to think about the cash bail system in the United States? If you’re like me, you may have just accepted it as the way things are and never given it a second thought. But the truth is, the cash bail system is unfair, unjust, and it disproportionately hurts communities of color and poor communities. On any given day, there are 450,000 people waiting for trial in jail, purely because they couldn’t afford to pay their bail. How is that so, when our criminal justice system is supposed to be fair?
I interviewed attorney Katherine Hubbard of the Civil Rights Corps a few weeks ago about this exact issue. She broke down the reasons why cash bail is unjust, what the alternatives are, and how we can work to change the system.
First, why does cash bail hurt communities of color more?
Communities of Color Are Over-Policed
To start with, communities of color are actually over-policed. If you grew up in a predominately white area, or an area that is wealthy, you may not have interacted with police very much at all. Or perhaps, if you did, you have a pretty positive view of the police. Unfortunately, for folks of color, that is usually not the case. When a community is over-policed, that means that more people are going to be arrested, whether they should be or not. And, as you’ll learn below, bail often has nothing to do with the crime you’re accused of, and certainly doesn’t depend on how much you can afford to pay.
Cash Bail Is Arbitrary
Judges are supposed to take affordability into account when they choose a bail amount. Unfortunately, that isn’t what usually happens. Many judges set an arbitrary number for bail without thinking about the defendant’s ability to pay it. When this happens, poor people, or people who just don’t have immediate access to thousands of dollars, end up sitting in jail for days, weeks, or more.
Cash Bail Doesn’t Actually Improve Public Safety
Bail exists as a way to ensure that people will show up to their court dates. The idea is that if someone puts up money as collateral, they’ll show up when they’re supposed to, so that they can get that money back. There is also an idea that holding people on bail is a matter of public safety. Unfortunately, a lot of people are held on bail even if they aren’t accused of a violent crime. Plus, people who are accused of a violent crime are able to get out of jail if they can afford their bail (see: Harvey Weinstein).
For example, when 15-year-old Kalief Browder was arrested for allegedly stealing a backpack, his bail was set at $3,000. Stealing a backpack is not a violent offense. The public would not be at risk if he was at home with his family awaiting trial. However, the bail was set and he ended up stuck in jail for 3 years without a trial. He later died by suicide.
Cash Bail Leads to Worse Outcomes for Those Stuck In Jail
To make matters worse, those who are stuck in jail before their trial end up having worse outcomes than those who are allowed to go home. First of all, according to Hubbard, there is a psychological effect on judges, as they see defendants who are in handcuffs and prison clothing. This can make them be more harsh on the defendant and pre-judge their guilt. Plus, many people end up pleading guilty to a crime they did not commit, just so they can get out of jail sooner. This means they will have a criminal record, which will effect their future job prospects. Of course, families and communities are also affected, as their loved one is stuck in jail and unable to contribute to the household. Being in jail, even just for a few days, can lead to the loss of a job, housing, and even custody of children. These results can impact individuals and families for years to come.
The Bail Bond Industry Profits Off Of This System
Did you know that the United States and the Philippines are the only countries in the world that have a cash bail system? Plus, in the United States, there is an industry, the bail bond industry, that actually profits off of this system.
If you can afford to put up your bail money as collateral on your own, you will get that money back after you show up for your court dates. However, when you hire a bail bondsman, you have to pay 10 percent of your bail amount as a fee and you will never get that money back. And more often than not, the bail bond company doesn’t have to pay the rest of the money due for bail. So they are taking 10 percent as a fee and rarely putting up the rest of the money.
This industry is rich and powerful. They don’t want things to change, and they will lobby to make sure that’s the case.
So, what are the alternatives?
According to Hubbard, there are lots of other options available that ensure that people will show up to court, without keeping them locked up or requiring bail money up front.
Pre-trial services agencies. These agencies provides the court with defendant background information so that they may make more informed and appropriate release and bond decisions. Not only that, but they provide further supervision and support of a defendant if they are out of jail, such as drug and alcohol monitoring and recommendations.
Unsecured bond. In an unsecured bail bond, the defendant signs a contract and agrees to appear in court. If they fail to do so, they promise to pay the agreed upon bail bond amount to the court. In this circumstance, a defendant doesn’t have to put any money or collateral up; they just have to pay later, if they don’t show up for court.
Court reminder systems. Have you ever gotten a text message from your dentist, reminding you that your appointment is coming up? The idea is the same. Courts should put text or call reminders in place, so that people don’t forget about their court dates. Without this, all people have is the original slip of paper that says the day and time to show up. It’s very easy to forget, and you shouldn’t get punished for it. The system should help you not to forget.
Childcare. Access to childcare in the United States is a major issue. Many people don’t have options when it comes to finding someone to care for their children when they are away. Courts can help with this by either providing childcare options at the actual court, or offering vouchers to pay for alternative childcare.
Transportation to court. Turns out, a lot of people who can’t afford bail also can’t necessarily afford to get themselves to court. A way for cities to help with this is to either provide actual transportation to court or to provide vouchers that allow individuals to pay for transportation, whether that’s a bus ride or a cab ride.
But what can we, as individuals, do to abolish cash bail?
Donate to your local bail fund. This is not a long-term solution, but it helps to solve the problem for individuals right now. Bail funds exist so that people who cannot afford to pay their own bail can post bail and get out of jail while they await trial.
Become a court watcher. Did you know that you can volunteer to go to court to observe how defendants are being treated? This is a great way to get involved in the system. You can find a local court watching organization in your area to sign up and report back on any discrimination that you witness.
Tell your elected officials to support ending money bail. Our elected officials are supposed to work for us. That’s why it’s so important to tell them what we want them to do. Contact your local, state, and national politicians and tell them that you support ending the cash bail system.
Find out what is happening in your community. There might already be movement on this issue in your local community. Plus, we actually have a lot more impact on our small, more localized communities than we do on a national level. What you advocate for can make a big difference to a lot of people nearby.
Vote for candidates who support abolishing cash bail. It’s amazing how much can change if the right politicians are in office. An issue you support might move much more quickly if your elected official supports it too. That’s why you should find out which candidates support abolishing cash bail and vote for them.
If you want to learn more about abolishing the cash bail system, follow the Civil Rights Corps and the work that they do. We don’t have to continue accepting unjust systems just because they’ve always been there. Reform is possible, and reform is imperative.
This piece was originally published on my ForbesWomen column.