Mass incarceration is one of the greatest social problems facing the United States today. America incarcerates a greater percentage of its population than any other country and is one of only two countries that requires arrested individuals to pay bail to be released from jail while awaiting trial,” Baughman states.
The U.S. is just one of two nations in the world with a money bail system (the other is the Philippines). The system means that people are held in jail while they wait for trial, unless they can afford to pay to go free. Defendants who can’t pay their way out of jail often lose their jobs, homes, children, and sometimes even their lives.
Recently, lawsuits challenging money bail have spread across the country. Many of the cases have been spearheaded by Alec Karakatsanis, who worked as a public defender for four and a half years before focusing on fighting back against what he calls mass “human caging.” He brought his first money-bail case, against Clanton, Alabama, in early 2015. The organizations that Karakatsanis works with have filed at least a dozen suits challenging bail, with 10 already settled in their favor.
I am now challenging every money bond case wherein my client is indigent. Its arbitariness is one source of criticism. This articles evidences the problems:
What constitutes reasonable bail is entirely at Judge Cantrell’s discretion. The man who supposedly threatened to kill his brother, even though his brother wasn’t the one who called the police? Cantrell sets a $2,500 bail. The young man accused of having methamphetamine, prescription drugs, and drug paraphernalia in his backpack? Twenty-five hundred dollars for each count, despite the public defender’s request that he simply be released. Cantrell sets a $10,000 bail for a man accused of threatening people with some sort of shiny object—and whose only income is a monthly $700 disability check. A 12th grader hauled in by police for firing a gun, on the basis of seemingly sketchy evidence, receives a $30,000 bail despite having no prior arrests. When the public defender argues that one particular $10,000 bail is excessive, Cantrell responds simply, “Your objection is noted.” When a defendant tries to speak on his own behalf, the judge instructs him, “Sir, don’t say anything.” Each person’s case takes less than five minutes. Then the court’s business moves on.
Cantrell has acknowledged that he refuses to set bail lower than $2,500, no matter the facts of a case. “We don’t go any lower than $2,500 in this court,” he told one defense attorney in 2016. When attorneys object to this practice, Cantrell sometimes threatens to hold them in contempt of court—for which they could serve jail time themselves. In 2015, 87 percent of defendants in Orleans Parish Criminal District Court had to post bail in order to be released. Of the defendants who could afford to post bail, 97 percent used a bail bondsman. New Orleans bondsmen earned $4.7 million in payments from defendants that year.
In Alabama, according to Article I, §16, Alabama Constitution of 1901, only a person charged with an offense defined as capital by statute may be denied bail.
That all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great; and that excessive bail shall in any case be required.
The stories above play out in Alabama every day:
What happens in Judge Cantrell’s courtroom isn’t unusual. Nearly everywhere in the country, when a person is arrested, he’s taken to a local jail and then appears before a judge, who determines whether charges will be brought against him and, if so, sets the terms of his release. Most of the time, that entails a price: For a felony, the typical amount is $10,000. If a person can afford to pay the full amount, he’ll be released immediately and receive that money back from the court if he shows up for subsequent hearings. But 44 percent of Americans would struggle to cover a $400 emergency. For those without resources, the path to freedom lies with a bondsman, who typically charges about 10 percent of the full bail amount to act as the guarantor or surety for the rest. If the defendant can’t afford the bondsman’s fee up front, many bond companies will set up an installment plan and charge interest. That money will never be refunded to the defendant, no matter how his case is resolved. Bondsmen, however, don’t have to pay the court anything when they get a client released: They simply promise to ensure that he will show up in court for later hearings. If the client fails to do so, the bondsman must pay the bail in full, but in practice bondsmen usually crack down on whoever signed the bond—family or friends, in most cases—and force them to pay it instead.
I needn’t remind you that, at this stage, these persons are constitutionally presumed innocent. Yet, “[m]ore than 60 percent of people locked up in America’s jails have not yet been to trial, and as many as nine in 10 of those people are stuck in jail because they can’t afford to post bond.” Not only is this legally and constitutionally unjust: think of the dangerous domino effect of not making bail:
But three days count. Even short-term incarceration can have dire consequences. People can lose their jobs, housing, even custody of their kids if they’re in jail. Studies also show pretrial detention makes otherwise low-risk defendants more likely to commit new crimes and less likely to appear in court. Spending the full pretrial detention period in jail also makes a person more likely to be sentenced to jail or prison and for a longer time—effectively adding to the problem of mass incarceration. These harms are not shouldered evenly. Blacks, Latinos, and Native Americans are twice as likely to be stuck in jail because they cannot afford money bail. This is in no small part because they face higher bail amounts on average than white defendants with similar charges. All this harm can happen even if a person is eventually found innocent or the charges are dismissed. The other side to this dysfunction is that about half of the most dangerous defendants exploit the money-bail system, often with assistance from for-profit bail bondsmen, to come up with the cash that lets them leave jail unencumbered by monitoring or supervision by the courts.
And a 2016 paper analyzing more than 420,000 cases determined that those who gained pretrial release were 15.6 percentage points less likely to be found guilty.