On any given day in the United States there are about 450,000 people in jail who have not been convicted of anything. According to the Pretrial Justice Institute, they cost taxpayers about $38 million a day.
Those 450,000 people have been charged with a crime, and all—except for a small percentage facing life in prison—have a right to be free. These men and women sit in jail because they do not have the money to get out, pending trial.
Bail is an age-old tool that allows judges to release defendants pending trial by requiring them to post a certain amount of money as a way of ensuring they’ll return to court. To make bail, defendants post collateral, pay the amount in cash or get a bail piece—insurance policy—from a bail bond company, which typically charges a 10 percent fee.
Let’s do the math. Mr. Smith gets arrested for assault. The court sets his bail at $1,500. The bail bond company needs $150 to post Smith’s bail. Smith doesn’t have it, so he sits in jail for 75 days awaiting trial. Smith pleads guilty and is sentenced to time served and released.
Because Mr. Smith didn’t have $150, taxpayers shelled out $85 a day for a whopping $6,375.
Bail serves two purposes: To guarantee that defendants appear for court; and to protect the public from those who are a potential threat. Proponents of cash bail say the money to post bail often comes from family members, and serves as a deterrent to fleeing.
Bail is not punitive. Although violent crime rates are at historic lows, the Trump Justice Department has made violent crime a top priority. Attorney General Jeff Sessions would do well to be smart, as well as tough, on crime. A first step might be setting aside funds for states who commit to reexamining pretrial detention.
A recent study in Maryland found that people arrested in the state from 2011 to 2015 paid combined bail premiums of more than $256 million. Those who use the services of a bail bond company do not get back any of the money paid. More than 25 percent of that money was paid by people who were acquitted or never faced trial.
Last fall, Maryland Attorney General Brian E. Frosh told members of the House of Delegates that judges and court commissioners must take into account the accused’s ability to pay before setting bail. According to the Baltimore Sun, Frosh said that if bail is out of reach for a defendant, the courts would find that unconstitutional.
Two years ago, New Jersey voters changed the state constitution to implement a new bail system that focused on expanding assessments of defendants to determine whether they should be released. The New Jersey Bail Reform and Speedy Trial Act went into effect in January. The new law will rely on a computerized risk assessment tool to make bail decision and is expected to reduce costs and significantly reduce the state’s jail population.
In New York City, Mayor William de Blasio earmarked $17.8 million to supervise 3,000 defendants in the community who are awaiting trial. The “supervised release” initiative permits judges to release defendants to a supervisory program that allows defendants to remain at home with their families and continue working while awaiting trial.
Those awaiting trial represent 63 percent of the total jail population. Less than four out of 10 men and women sitting in county and local jails are actually serving a sentence. Those sitting in jail not serving a sentence drain about $14 billion a year from public coffers.
America’s bail system has become a central issue in the fight to reverse mass incarceration. According to NBC News, in courthouses, statehouses and ballot boxes across the country, civil rights lawyers and progressive policymakers are working to curb the practice of demanding money in exchange for freedom before trial.
“The nation needs to reform its bail system. But it’s not as simple as saying, ‘Eliminate cash bail,’ ” Kevin Burke, a Minnesota district judge and past president of the American Judges, Association told Stateline.
According to Burke, judges only get a few minutes to assess a defendant’s case, and often judges set bail without knowing the full circumstances.
“The fear (they have) is ‘I’m going to let somebody go and they’re going to go out and do something terrible, or they won’t come back, so I’ll set bail,’” Burke said.
The current bail system denies freedom to thousands of people who are presumed innocent but are financially challenged. Those who sit in jail are at risk of losing their jobs, their homes, and their families.
Certainly, it’s unfair to incarcerate someone merely because they cannot afford bail. It is equally unfair to every man and woman in America to spend about $1 trillion, according to the Pretrial Justice Institute on pretrial incarceration, which amounts to about six percent of the Gross Domestic Product.
According to the White House Council of Economic Advisers, the use of bail has exploded in the past two decades, driving a 59 percent rise in the number of un-convicted jail inmates.
Correcting America’s bail crisis is not out of reach. This isn’t about being tough on crime. It’s about being fair. For some, even a nominal bond is out of reach. When an accused has no money, $1,500 might as well be $150,000.
For taxpayers the issue is just as compelling.
If the cost of pretrial detention could be cut in half, taxpayers could save $7 billion a year. In these challenging economic times those dollars are difficult to ignore.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino. He welcomes readers’ comments.