Detaining the Poor:

How money bail perpetuates an endless cycle of poverty and jail time

By Bernadette Rabuy and Daniel Kopf May 10, 2016

In addition to the 1.6 million people incarcerated in federal and state prisons, there are more than 600,000 people locked up in more than 3,000 local jails throughout the U.S. Over 70 percent of these people in local jails are being held pretrial — meaning they have not yet been convicted of a crime and are legally presumed innocent.

One reason that the unconvicted population in the U.S. is so large is because our country largely has a system of money bail, in which the constitutional principle of innocent until proven guilty only really applies to the well off. With money bail, a defendant is required to pay a certain amount of money as a pledged guarantee that they will attend future court hearings. If the defendant is unable to come up with the money either personally or through a commercial bail bondsman, they can be incarcerated from their arrest until their case is resolved or dismissed in court.

This chart illustrates the possible paths from arrest to pretrial detention. Almost all defendants will have the opportunity to be released pretrial if they meet certain conditions, and only a very small number of defendants will be denied a bail bond, mainly because a court finds that individual to be dangerous or a flight risk. The only national data on pretrial detention that we are aware of comes from the Bureau of Justice Statistics’ Felony Defendants in Large Urban Counties series. Nationally, in 2009, 34% of defendants were detained pretrial for the inability to post money bail. This report focuses on this important population: those who are detained pretrial because they could not afford money bail.

While the jail population in the U.S. has grown substantially since the 1980s, the number of convicted people in jails has been flat for the last 15 years. Detention of the legally innocent has been consistently driving jail growth, and the criminal justice reform discussion must include a discussion of local jails and the need for pretrial detention reform. This report will focus on one driver of pretrial detention: the inability to pay what is typically $10,000 in money bail.

Building off our July 2015 report on the pre-incarceration incomes of people in prison, this report provides the pre-incarceration incomes of people in local jails who were unable to post a bail bond. This report aims to stimulate a more informed discussion about whether money bail makes sense, given the widespread poverty of the people held in the criminal justice system and the high fiscal and social costs of incarceration, and offers recommendations for how states and counties can move beyond unnecessary pretrial detention. People in jail are even poorer than people in prison and are drastically poorer than their non-incarcerated counterparts.

We find that most people who are unable to meet bail fall within the poorest third of society. Using Bureau of Justice Statistics data, we find that, in 2015 dollars, people in jail had a median annual income of $15,109 prior to their incarceration, which is less than half (48%) of the median for non-incarcerated people of similar ages. People in jail are even poorer than people in prison and are drastically poorer than their non-incarcerated counterparts.

Unsurprisingly, white men have the highest incomes before incarceration while Black women have the lowest incomes before incarceration. The difference for Black men is particularly dramatic. Black men in jail have a preincarceration median income 64% lower than that of their non-incarcerated counterparts.

What is the difference between a bail and a bond?

The word “bail” does not mean the amount of money that a defendant must pay for pretrial release. Bail refers to the process of releasing a defendant from jail with conditions set to reasonably assure public safety and that a defendant will show up for court. Note that the word “bail” does not mean the amount of money that a defendant must pay for pretrial release, although the term is commonly, but incorrectly, used this way.

A bond is an agreement. Therefore, a bail bond is an agreement between a defendant and the court — sometimes involving money and sometimes not (release on own recognizance) — to maintain public safety and assure that a defendant will show up for court.

Do defendants have to pay the whole bail bond amount? Why do I often hear that only 10% is required?

The use of a commercial bail bondsman is the most common way to meet bail, which usually requires a nonrefundable fee of 10%.

Courts almost always offer a defendant the option to pay cash or surety for his bond amount. “Cash” means the defendant would pay 100% of the bond amount set, and pay it directly to the court prior to release from jail. If he makes his court appearances, the court must return the amount he paid. “Surety” options allow defendants to pay a portion of the bail bond amount as a nonrefundable fee to a bail bondsman or agency. The fee is typically 10%, although it can be more or less than that. Even if the defendant shows up for all of his court dates, he will not get the fee back.

The use of “surety” or a commercial bail bondsman is the most common way that defendants meet the conditions of money bail for two main reasons. First, most defendants cannot afford the 100% bond amount set by courts, and, second, most courts are not equipped to handle the transaction of processing “returns” of cash when people keep their court dates. As a result, some courts prefer to use surety companies for this transaction.

Few jurisdictions have tried to make it easier for more defendants to be released pretrial through other cash alternatives or deposit bonds. For example, in Illinois, all defendants who have a bail bond amount set are automatically eligible to pay a 10% cash alternative to the court. (A similar practice in Massachusetts has effectively eliminated the private bail bond industry.) If the defendant shows up for court, the money is refunded, except for a small administrative fee.

In New York City, a third of cases had a cash alternative in 2010, which most commonly offered a 50% discount on the full bail bond amount. One study found that a minimum cash discount of 60% would make the cash alternative in New York City competitive with the use of commercial bail bondsmen or agencies. At discounts below 60%, defendants were still likely to use commercial bail bondsmen.

Examining the median pre-incarceration incomes of people in jail makes it clear that the system of money bail is set up so that it fails: the ability to pay a bail bond is impossible for too many of the people expected to pay it. In fact, the typical Black man, Black woman, and Hispanic woman detained for failure to pay a bail bond were living below the poverty line before incarceration. The income data reveals just how unrealistic it is to expect defendants to be able to quickly patch together $10,000, or a portion thereof, for a bail bond. The median bail bond amount in this country represents eight months of income for the typical detained defendant.

The median bail bond amount in this country represents eight months of income for the typical detained defendant. Because a system of money bail allows income to be the determining factor in whether someone can be released pretrial, our nation’s local jails are incarcerating too many people who are likely to show up for their court date and unlikely to be arrested for new criminal activity.

Although, on paper, it is illegal to detain people for their poverty, such detention is the reality in too many of our local jails. Our country now has a two-track system of justice in which the cost of pretrial liberty is far higher for poor people than for the well off.

Recommendations

This report shines light on another injustice of the American criminal justice system — the unnecessary and excessive detention of poor people in our local jails. To truly make our local communities safer and ensure that bail decisions are based on more than how much money one has, states, local governments, and sheriffs should:

1. Eliminate the use of money bail
   Too many jails are detaining people not because they are dangerous, but because they are too poor to afford bail bonds. One study of felony defendants nationwide found that an additional 25% percent of defendants could be released pretrial without any increases to pretrial crime. The study found that many counties could safely release older defendants, defendants with clean records, and defendants charged with fraud and public order offenses, all without threatening public safety.
   
   At a time when the White House is condemning money bail as “a crude way to screen pretrial defendants for their risk of flight or to the community,” states and local governments should eliminate money bail. Instead, courts can increase their use of non-financial forms of pretrial release such as release on own recognizance, which is when a defendant signs an agreement that he will appear in court as required and is not required to pay any money for pretrial release.

Another option is to use unsecured bonds instead of money bail. Through unsecured bonds, a defendant is not required to pay any money to be released pretrial, but he will be liable to pay an agreed upon amount of money if he does not appear for court. Unsecured bonds are as effective at achieving public safety and court appearance as money bail and much more effective at freeing up jail beds. States and local governments interested in eliminating money bail can follow the lead of Kentucky and the District of Columbia. Kentucky banned for-profit money bail 40 years ago, and a statewide agency instead uses a risk assessment tool to determine who will be released pretrial. In D.C., most defendants are released on own recognizance, during which time they are supervised by the D.C. Pretrial Services Agency. Both Kentucky and D.C. have remained successful at ensuring defendants show up for court and avoid arrest for new criminal activity.

2. Stop locking people up for failure to pay fines and fees
   As the criminal justice system and its associated costs have grown, states and local governments such as Ferguson, Missouri have adopted a misguided policy: charging defendants fines and fees to pad their correctional, and even municipal, budgets. Because, as this report shows, the people who are being charged these fines and fees are largely poor, states and local governments unsurprisingly have difficulty collecting these funds and, for failing to pay criminal justice debt, people can land in jail. For example, in Rhode Island in 2007, 18% of defendants were locked up for criminal justice debt. States and local governments should stop locking people up for failure to pay criminal justice debt that they cannot afford, a practice repeatedly deemed unconstitutional by the U.S. Supreme Court.

If states and local governments decide that charging fines and fees is worth the effort, they should consider ability to pay when assessing fines and fees and be flexible by allowing payment plans, community service in lieu of payment, and exemption waivers for poor defendants. For example, in 2011, Washington State passed legislation permitting waivers of interest that is accrued on criminal justice debt while a person is locked up. After researching the net gains of fee collections, Leon County, Florida decided to close its Collections Court and terminated thousands of outstanding arrest warrants.

3. Reduce the number of arrests that lead to jail bookings through increased use of citations and diversion programs
   Despite falling crime rates, the likelihood of arrest has increased modestly for violent and property crimes and dramatically for drug crimes over the past three decades. More arrests hinder criminal justice reform by increasing the number of people locked up in the U.S. By choosing to lock up people who need mental health and substance use services and not jail time, American jails have become de facto mental health institutions.

One of the best yet underused reforms available to our local criminal justice systems is for police to reduce the number of arrests that lead to jail bookings. Instead, police can cite people so that defendants can wait for their court date at home without having to post money bail or risk losing employment. Kentucky, Maryland, and D.C. have all increased their use of citations. States and local governments can also follow the lead of Seattle, which implemented Law Enforcement Assisted Diversion (LEAD). Through LEAD, police officers connect people — who are often battling chronic homelessness, substance use, and mental health challenges — to social services rather than bringing them to jail. LEAD has been effective at both reducing arrests and slowing the rate at which people arrested for low-level crimes cycle through Seattle jails.

4. Increase funding of indigent criminal defense
   Most defendants are too poor to afford a private attorney to represent them. Further, while the Supreme Court has affirmed the constitutional right to counsel at initial appearance, in reality, only 10 states and D.C. provide counsel at initial appearance. A study of defendants in Baltimore found that the failure to provide legal representation when bail bonds are determined was a leading reason for lengthy pretrial detention. Defendants who were represented had a median jail stay of two days while unrepresented defendants had a much longer median jail stay of nine days. Greater funding of indigent criminal defense is imperative to making sure that incarceration is only used when necessary and that the sentence is proportional to the offense. Increased funding could ensure both that the right to counsel is the reality for even the poorest defendants and that more defendants have the guidance of an attorney earlier in the legal process, such as when the bail bond amount is set or reviewed. One recent example is in San Francisco, where the public defender’s office has assembled a Bail Unit. Comprised of two lawyers, two paralegals, and interns, the Bail Unit works to contest bail bonds for nearly all of the public defender’s clients.

5. Eliminate all pay-to-stay programs
   Jails and prisons in forty-one states charge incarcerated people for room and board through pay-to-stay programs. For example, Riverside County, California requires incarcerated people to pay $142 per day for their incarceration. Now that the data in this report can confirm that the majority of people that fill our local jails are poor, states and local governments should resist the temptation to create new forms of criminal justice fees, such as increasingly common pay-to-stay programs. Otherwise, states and local governments risk spending more on the administrative costs of collection than the little money they are able to chase down.
   If states and local governments insist on having a pay-to-stay program, they should, at the very least, make sure to research the likelihood that a program would be worth it before implementation. For example, when a committee was formed in Massachusetts to consider whether introducing a room and board fee in prisons and jails would feasibly increase revenue, the committee concluded that the harms of additional fees outweighed the benefit.
   

6. Reduce the high costs of phone calls home from prisons and jails and stop replacing in-person jail visits with expensive video visitation
Phone calls home from prisons and jails and increasingly common remote video visits typically cost $1 per minute. The high prices of these communications products act like a regressive tax, charging the people who have the least the most to keep in touch. As a result, more than a third of families of incarcerated people fall into debt to cover phone and visitation costs. And it is these same family members who defendants often turn to when trying to scrape together money for bail bonds or other criminal justice fines and fees.

While the Federal Communications Commission has been working to protect incarcerated people and their family members from these high costs, a federal court has stayed parts of the FCC’s last round of regulations. States and local governments should not wait around until the lawsuit is resolved. Instead, they should follow the lead of many states such as New York and, recently, Mississippi by immediately reducing the rates in their phone and video visitation contracts. States and local governments should also protect the in-person visitation rights of people in local jails and resist the temptation to replace free in-person visitation with expensive computer chats. Recognizing how video visitation is cost-prohibitive for many families, the state of Texas as well as Multnomah County, Oregon and Alameda County, California have all protected in-person visitation rights for people in local jails.

https://www.prisonpolicy.org/reports/incomejails.html