On any given day, one quarter of everyone incarcerated in America is jailed pre-trial, presumed innocent, convicted of no crime. That's 500,000 people every day.
Those accused of crimes are incarcerated simply because they are too poor to buy their freedom. $500 bail may mean a trip to the ATM for some. For most, however, it means jail with no end in sight. Pre-trial detention destroys lives and coerces guilty pleas with the promise of going home sooner. It drives mass incarceration.
The practice of detaining people charged with crimes, but not convicted. People arrested and presumed innocent are locked in jail until their case ends, or in rare cases, come up with the money for bail. Most people are detained pretrial because they can’t afford to pay cash bail, an amount of money paid to the court to get released that is supposed to serve as incentive to guarantee return to court.
The idea behind cash bail seems simple enough: pay money to get released, and as long as you return to handle your case, you get your money back. Bail is meant to be an incentive to come back to court, not a punishment. Of course, this only works if you can afford to pay it in the first place. In reality, the only thing that bail ensures is that people in poverty return to court in shackles.
On any given day, nearly a half million people are stuck in jail because they and their families can’t afford to post their bail. For those people, bail doesn’t incentivize return. Bail punishes them for being poor and coerces them into pleading guilty.
While a person’s life crumbles behind bars, on the outside, bills are left unpaid, hard-won jobs are lost, families are kicked out of their homes, loved ones in need of care taking are left without caretakers or breadwinners.
Those with means have completely different case outcomes from those without. When you’re incarcerated, there’s simply nothing more powerful than the desire to go home. If it means returning to your loved ones, or your job, or just getting out of jail, people overwhelmingly plead guilty even when innocent, even when the case is weak, and even where there was police misconduct.
Once bail coerces a plea, the case is over. The officers involved in the arrest will never have to take the stand and be cross-examined. A guilty plea also erects legal barriers to a civil rights lawsuit for unconstitutional policing. The conduct of prosecutors will almost never be scrutinized. There’s simply no disincentive for overpolicing and overprosecuting in a system of pleas driven in large measure by pretrial detention.
In New York City, almost 90% of those incarcerated on cash bail pre-trial for misdemeanors are people of color.
At over $700 per night, Rikers Island, one of the worst jails or prisons in the country, eclipses presidential suites at world class hotels, but with way worse service and extreme violence. We all pay this cost, yet we all know this money could be better spent investing in poverty-alleviation and community-building
The devastating effects of pre-trial detention.
Prosecutors and judges fear retribution in the press if they release an individual who happens to commit another crime. This fear incentivizes incarceration over fairness.
If every person coming through the system demanded a trial, the system would implode. The widely-known “secret” is that bail coerces people to plead guilty to enable the system to continue to operate.
In New York, the current pre-trial detention statute requires judges to consider a defendant’s ability to pay, and take in to account factors like the person’s character, condition, and community ties. The law also provides judges with many alternative forms of bail to accommodate a person’s ability to pay. A judge should never set bail at an amount a person cannot afford. Yet it happens all the time.
The vast majority of cases involve people arrested and prosecuted for low level offenses and misdemeanors that are the product of addiction, homelessness, poverty, and/or mental illness. Police disproportionately target people in poverty and people of color. The fewer people forced through the doors of criminal court, the fewer people who will be sent to jail pre-trial.
The bail bonds industry, a powerful interest group that actually profits from bail, strongly opposes eliminating the bail system. With a $14 billion lobbying force, bail bondsmen run a predatory industry that exists nowhere else in the world (except in the Philippines, a former U.S. territory). We should remove profit from incarceration.
There is a growing movement to replace cash bail with data and algorithms that claim to reliably predict risk of “dangerousness” or flight. These so-called "risk assessment tools" rely on statistics of what others have done in the past, putting a false imprimatur of science on what is essentially discrimination and profiling. In all likelihood, these instruments will just replicate and reinforce long-existing racial, economic, and other disparities, directing judges to lock up people who otherwise would and should be freed.
Bail and pre-trial detention have become one of the leading civil rights issues of our time, bolstered by bipartisan outrage over the human and fiscal waste of pre-trial detention, and the horrific tragedy of Kalief Browder, an innocent young man who spent 3.5 years on Rikers on $3,500 bail before his case was finally dismissed.
Art philanthropist, Agnus Gund, sold a Lichtenstein for $115 million and donated the proceeds to criminal justice with a focus on ending pretrial incarceration. John Oliver, the NYT Magazine, a PBS documentary on Rikers Island and other stories have all taken bail mainstream.
There is now unique and unmistakable consensus that pre-trial detention needs significant overhaul. Even conservative politicians like Newt Gingrich, outlets like the National Review, and funders like the Koch Brothers are decrying reliance on pretrial detention.
Local grassroots movement leaders at #FreeNewYork, Katal Center, and VOCAL are reshaping what local justice activism means. Enterprising former public defenders at the Civil Rights Corps are successfully suing to eliminate cash bail systems in many parts of the country. Local and national bail funds are raising millions from foundations, philanthropists, and the general public to bail people out.
Affected by pre-trial detention and/or bail? Whether you’re a fellow public defender or other frontline practitioner, or personally touched in some way way by the system, we’d love to hear from you.
