Cash Bail
Hi Friends!
Welcome to Issue 51 newsletter. This week’s topic is: The Cash Bail System in America. First and foremost, we should establish what bail is and how it’s used. The terms “jail” and “prison” are often used interchangeably, but they actually are two separate institutions. A jail is for short-term sentences, or where someone waits for trial. A prison is for a long-term sentence, including a life sentence. There are other differences between jails and prisons in terms of who oversees them, what the incarcerated person can access, potential resources and more. In 2019, there were “1,566 state prisons, 102 federal prisons, 2,850 local jails, 1,510 juvenile correctional facilities, 186 immigration detention facilities, and 82 Indian country jails, as well as in military prisons, civil commitment centers, state psychiatric hospitals, and prisons in the U.S. territories.” When someone is accused of a crime, a judge decides if they are 1) held without bail, 2) released, 3) held with bail. If someone cannot pay bail, they go to jail. This is before they have a trial. Every day, nearly half a million individuals sit in local jails who have not been convicted of any crime. Why are most of them there? Because they cannot afford cash bail. In 2014, only 14% of New Yorkers could afford to pay their bail, meaning 86% of those accused of a crime were sitting in jails for days, weeks, or even years. To avoid this, many people plead guilty and take a plea deal instead of waiting for a trail. Only about 5% of cases go to trial at all. This has lasting consequences. Bail criminalizes poverty. Let’s get into it.
Key Terms
Bail: Cash bail is a refundable, court-determined fee that a defendant pays—regardless of guilt or innocence—to await trial at home instead of in jail. While “innocent until proven guilty” is ingrained in the American psyche, the use of bail means that if you can’t pay you serve jail time.
Bond: The words “bail” and “bond” are often used almost interchangeably when discussing jail release, and while they are closely related to each other, they are not the same thing. Bail is the money a defendant must pay in order to get out of jail. A bond is posted on a defendant’s behalf, usually by a bail bond company, to secure his or her release.
Bail Schedule: A bail schedule is a list of bail amount recommendations for different charges. Some states allow defendants to post bail with the police before they go to their first court appearance. The required amount of bail will depend on the crime that the defendant allegedly committed. A key difference between police bail schedules and bail determinations by judges is that a judge has discretion to alter the amount. They can consider many different factors, such as a defendant’s criminal history, employment status, and ties to the community. These intangible factors do not affect the bail schedule in a jail. If you are unwilling to pay the amount required by the bail schedule, you likely will need to go to court and present your case to a judge.
Plea Deal: Plea deals—which are entirely within the discretion of a prosecutor to offer (or accept)—typically include one or more of the following: 1) the dismissal of one or more charges, and/or agreement to a conviction to a lesser offense, 2) an agreement to a more lenient sentence and length, 3) an agreement to stipulate to a version of events that omits certain facts that would statutorily expose a person to harsher penalties.
Criminal Conviction: Besides direct consequences that can include jail time, fines, and treatment, a criminal conviction can trigger many consequences outside of the criminal court system. These consequences can affect your current job, future job opportunities, housing choices, immigration status. You may have to disclose your criminal record to employers. You may find it difficult to obtain a mortgage, auto loan, business loan, or other loan due to your criminal conviction. While a conviction does not automatically eliminate your eligibility for financial aid for college, it could impact on your ability to qualify. Landlords often conduct background checks before approving a prospective tenant and may not approve you for housing. In some states, you could lose your right to vote, serve on a jury, or hold a public office if you are convicted of a felony. Your conviction could have serious implications for your immigration status. Even a misdemeanor conviction can limit your ability to travel to other countries. You may lose custody of your children.
Risk Assessments: Developed and implemented by a mix of jurisdictions, states, private companies, nonprofit organizations and academic institutions, these special algorithms use factors such as age, education level, arrest record and home address to assign scores to defendants. Risk assessment tools are marketed as a way to automate a resource-strapped system and remove human bias. But critics say that they can amplify existing inequities, especially against young Black and Latino men and people experiencing mental illness. More than 60 percent of Americans live in a jurisdiction where the risk assessment tools are in use, according to Mapping Pretrial Injustice, a nonprofit data campaign critical of the tools.
The 8th Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Let’s Get Into It
Fast Facts About Bail
COVID-19 has exacerbated bail issues and led to longer stays in jail for people who have yet to have a trial. In New York, for example, for people who do not make bail, average jail stays have become longer. The average number of days people were in custody in New York City jails rose from 198.4 in January 2020, or roughly six and a half months, to 286.5 days, or more than nine months, in August 2021 – a 44% increase.
The average length of pretrial incarceration in the US is 26 days
At any given time an estimated half a million Americans, or about two-thirds of the overall jail population, are incarcerated because they can’t afford their bail or a bond.
About 94% of felony convictions at the state level and about 97% at the federal level are the result of plea bargains. That means only 3%-6% of all cases actually go to trial.
Why Does Bail Exist And How Does It Work?
From The Marshall Project:
You’ve been arrested, taken to jail, fingerprinted and processed. Within 24 to 48 hours, you’ll go to an initial hearing known as an arraignment.
There, a judge will formally present the charges against you, and you will plead innocent or guilty. Then the judge either grants bail and sets the amount; releases you on your own recognizance without a fee; or denies you bail.
Bail is usually denied if a defendant is deemed a flight risk or a danger to the community because of the nature of the alleged crime.
If you get bail, you have three choices:
Pay the amount in full and get out of jail. You’ll get the money back when the trial is over, no matter the outcome.
Pay nothing. You’ll return to jail and await trial.
Secure a bail bond and get out of jail. In this case, you’ll pay a private agent known as a bondsman a portion of the amount, usually 10 percent and collateral such as a home or jewelry to cover the balance. (In turn, bail bond companies guarantee the full amount to the court.) The fee you pay for a bail bond is not refundable, even if your charges are dropped.
Resources
Friends, the bail system is absolutely horrific, and this is just scratching the surface.
I plan on discussing bail a lot more in this newsletter since it’s something I’m focusing a lot of thought on in school. This newsletter is just the start so I wanted to cover the basics. My final paper for one of my classes will center around bail, specifically as it impacts New Yorkers. Bail is absolutely heinous and destroys people’s lives. Let’s keep talking about it. See ya next week!
