The Unintended Consequences of Money Bail

jail & money

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” – 8 Amendment, U.S. Constitution

 

At the time of the US government’s founding, the right to bail, i.e. release, pretrial was deemed so important that it was included within the Bill of Rights. But the right to bail does not mean a right to money bail. Despite its widespread use, there is no evidence to suggest that money bail actually prevents crimes or failures to appear. But it is very successful in preventing middle and low-income defendants from being released, in direct opposition to the 8th amendment.

In 2013, 62 percent of county jail inmates were non-convicted individuals waiting trial, the majority of who were there because they could not pay their bail. Importantly, this injustice is most commonly committed against people of color, who are much more likely than their White counter parts to be arrested in the first place and once arrested, are more likely to be detained than their White counterparts. In a University of Minnesota study on pretrial release, White defendants were at least twice as likely to be released without any bail conditions than defendants of color, controlling for offense and number of felony charges.

Furthermore, the disparity, on average, Black men are assigned bond amounts that are 35 percent higher than White men, and Latino men are assigned bond amounts that are 19 percent higher than White men. Higher rates of justice contact, combined with higher rates of poverty and higher bail bond amounts result in vastly unequal rates of pretrial detention for people of color which has devastating unintended consequences.

Persons held in pretrial detention, even when only for a few days, are more likely to commit new crimes. Both low and medium-risk defendants are more likely to reoffend and less likely to show up at court when they are detained for any length of time pretrial.

Compared to similar defendants held less than 24 hours, Low-risk defendants held 2 to 3 days were:
40% more likely to reoffend before trial
22% more likely to fail to appear (FTA)

The effects increase the longer people are held. Defendants held 31 days or more were:
74% more likely to reoffend pretrial
31% more likely to FTA[1]

Trial outcomes are worse for those who remain detained before trial.

Compared to similar defendants who were released pretrial, those who remained in jail:
Plead guilty more often
Are convicted more often
Are sentenced to jail 4x more often & 3x longer
Are sentenced to prison 3x more often & 2x longer


When a judge deems a defendant fit for release, the imposition of money bail too often prolongs the length of pretrial detention and many times outright prevents the release of defendants.
For judges who believe a defendant can be safely released pretrial, any condition that jails defendants even for a day dramatically undermines the decision to release.

It is estimated that in 2011, county jail inmates (2/3 of which were pretrial defendants) cost taxpayers $9 billion. Even if a defendant is able to pay his or her bail amount, what is paid rarely makes up for the amount that the justice system spends on detaining that individual. For example, in 2011, Leslie Chew was arrested for stealing blankets and her release was ordered dependent on her paying $3,500. After six months she still lacked the $350 she needed to pay for a commercial bondsman to put up the full amount. That six months detention was estimated to cost over $7,000 to tax payers.

The cost to tax payers is astounding, but it is important to recognize that the brunt of the cost is felt by individuals and communities of color who suffer both the acute and long-lasting impacts of denied bail. While the disparate impact of money bail is evident, the depths of disparities are as of yet unclear. More data collection and analysis is necessary for truly understanding how unequal money bail decisions affect people and communities of color.


[1]
Sources: Rational and Transparent Bail Decision Making: Moving From a Cash-Based to a Risk-Based Process by the MacArthur Foundation (2012), Pretrial Criminal Justice Research, by the Laura and John Arnold Foundation, Unsecured Bonds: The As Effective and Most Efficient Pretrial Release Option. By Michael Jones (2013)

The Evolution of Money Bail Throughout History

jail & money 

California Supreme Court Chief Justice Tani Cantil-Sakauye recently proclaimed, We must not penalize the poor for being poor.” This belief underpins her efforts to direct resources to releasing defendants under supervision rather than money bail as well as to studying money bail on a national level. The reliance of courts on money bail and other fines to support their budgets has led to the proliferation of commercial bondsmen in most states. Bail bondsmen have become part of the landscape of the U.S. criminal justice system. As mass incarceration has come under greater scrutiny, so too has the institution of bail. Both have drastically disproportionate impacts on the poor as well as people of color.

In 2013, 62 percent of county jail inmates were non-convicted individuals waiting trial, the majority of who were there because they could not pay their bail. Black and Latinos makeup 50 percent of jail populations but only 29 percent of the U.S. population. To better understand the current racial and ethnic disparities caused by commercial bail bonds, we must understand its history and the history of bail reform. Two works by Timothy Schnacke, “The History of Bail and Pretrial Release,” and “Money as a Criminal Justice Stakeholder,” explain the history and current use of money bail, outlining the significant issues associated with this element of criminal justice.

Generally, bail is a process of release with conditions that judges give to adult defendants awaiting trial. The conditions are meant to ensure that the defendant appears at court and to prevent new crime. Money bail requires a defendant to pay a sum of money in order to be released.

Originally, money bail was developed in the Anglo-Saxon period in England (410-1066) as a means of settling disputes peacefully. The accused was required to find someone to serve as their surety who agreed to pay the settled amount to the victim if the defendant fled. No money was actually required to be released; a defendant just had to show they would be able to pay the settlement if needed. But as June Carbone said in Seeing Through the Emperor’s New Clothes: Rediscovery of Basic Principles in the Administration of Bail, The Anglo-Saxon bail process was perhaps the last entirely rational application of bail.”

For hundreds of years, friends and families served as sureties for those accused of crime. Around the 1900s, this started to change. In England as well as the United States, industrialization led to more people on the move. No longer was it as easy for people to find relatives to act as sureties, and there were even more opportunities for people to skip town rather than stick around for a verdict. In 1898, England passed the Bail Act to dispense with sureties and to find more effective methods of ensuring court appearance and preventing new crimes. The U.S. went in the opposite direction. That same year, the first commercial bondsmen started up shop in San Francisco, and the lucrative business quickly caught on across the country.

By this time, most courts required money bail amounts to be paid in-full as a condition of release. Unable to finance the full amount at one time, more and more people turned to commercial bondsmen to put up their bail amount. Bondsmen in turn expected full repayment with interest. As courts increased the use of money bail for release and the amount required for release, people relied more heavily on commercial bondsmen. It did not take long to see the gross inequalities between who was able to afford release and who was not. No longer was release a question of probable guilt and future appearance in court, instead it became only a question of money.

As Judge J. Skelly Wright of the D.C. Circuit Court stated in 1963, “Certainly the professional bondsman system…is odious at best. The effect of such a system is that the professional bondsmen hold the keys to the jail in their pockets…The court and the commissioner are relegated to the relatively unimportant chore of fixing the amount of bail.”

Guided by a desire to turn profits, rather than ensure public safety or justice, the abuse of this system became both pervasive and well-known. And those who were most seriously affected were those already disproportionately represented in the system; the impoverished and people of color. The Pretrial Justice Institute provides shocking statistics on the disparities in arrest, detention, and use of bail between White men and Black and Latino men as well as the unintended consequences.

The American Bar Association (ABA) and thought leaders in the field have condemned the use of money bail as it is not shown to improve public safety or prevent failures to appear. It has been shown to contribute to the increasing proportion of jail inmates who are not convicted of any crime (50% of jail inmates in 2000 and 62% in 2013). The ABA recommends judges return to the foundation of the justice system: assume innocence until proven guilty. Under this framework, decisions to release or detain should not be contingent on one’s ability to pay. If a defendant is safe to be released pretrial, then they should be granted that release immediately and given the minimal amount of conditions required to ensure appearance in court and no new crimes. Alternatively, if a person is not safe to be released, then they should be detained in a manner that is fully transparent and not reliant on their financial abilities.

Momentum is building around criminal justice reform. Class-action lawsuits have been filed against jurisdictions addressing the unequal use of money bail including an October filing against the city of San Francisco. In response to mounting critique against the use of money bail and similar practices, the National Center for State Courts launched a National Task Force on Fines, Fees and Bail Practices in February.

However, the move to reform the U.S. bail system is nothing new. Over hundreds of years, the abuse of money bail has resulted in reform efforts which had varying degrees of success. Yet misuse continues, and those most affected by the money bail system are disproportionately poor and people of color. Knowing the original purpose of bail and its current use we can be better prepared to understand the disastrous impact of the current system of money bail.

In just a few clicks, the BI gives you the ability to see the racial and ethnic disparities in your local youth justice system.

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We’ve kicked off 2016 with the sobering reality that our youth justice system continues to lock up tens of thousands of youth a year; the overwhelming majority of whom are youth of color. As public outcry continues to mount against the disparate treatment of people of color by justice systems, The W. Haywood Burns Institute (BI) is hopeful that more stakeholders will commit themselves to policy and practice changes that work to promote greater racial equity in the administration of youth justice.

The Office of Juvenile Justice and Delinquency Prevention (OJJDP) recently released 2013 data on youth incarceration and confinement. While most states have reduced their numbers of confinement, the disparate rate at which youth of color are involved in the youth system remains inexcusably high.

Using new data from OJJDP, the BI’s Unbalanced Juvenile Justice data map allows you to learn all about the racial and ethnic disparities occurring in your local youth justice system.

In 2014, the BI launched the data map and encouraged users to incorporate the data into their own work. With the latest 2013 data, it is time again to see how each state is progressing in its fight for racial and ethnic fairness. By using BI’s data map, one is able to have a more critical approach by analyzing raw numbers and rates as by offense category, race and ethnicity. This interactive ability provides a nuanced understanding of changes in the justice system.

As noted in OJJDP’s 2013 highlights, the number of incarcerated youth continued to decline in most states in 2013. In the United States, incarceration numbers dropped 12.9 percent for all youth between 2011 and 2013.

Yet, despite overall reductions in incarceration rates, White youth experienced the most significant decline. This means that White youth are now even less likely to be incarcerated than youth of color than before.

While there are jurisdictions actively working to address racial and ethnic disparities in their local systems, the data shows there is still much work to be done in every jurisdiction:

  • Despite declining numbers for both Black and White youth in California, Black youth went from 7.5 times more likely than White youth to be incarcerated in 2011 to 8.2 times more likely in 2013.
  • In Utah, the number of White youth declined sharply, while the number of Black youth increased between 2011 and 2013. In 2011, there were 402 White youth and 45 Black youth incarcerated in Utah. In 2013, there were 246 White youth and 144 Black youth incarcerated. While there are more White youth incarcerated than Black youth, when accounting for the number of White and Black kids in Utah’s population, Black have a much higher rate of involvement than White youth.
  • In 2011, Black youth in Utah were five times more likely than White youth to be incarcerated. In 2013, this disparity jumped to 26 times more likely.
  • Nevada had a significant reduction in the disparity gaps for Black and Latino youth in 2013. However, Native American youth were incarcerated at higher rates in 2013 than they were in 2011.

The disparate treatment of youth by race and ethnicity by our justice system is unconscionable. In 2013, youth of color were more likely than White youth to be incarcerated in every single state. This was particularly true for Black youth.

As we embark upon another year of reform efforts in 2016, we hope these data will continue to serve you and those in your community.

Please make sure to sign up for regular updates from the BI to learn more about how you can end racial and ethnic disparities in your local youth justice systems.

Predictive Policing: A Potential Nightmare for Communities of Color

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Predictive policing may be a dream come true for budget-strapped police departments, but the implications of its use in youth and communities of color are a nightmare.

“Predictive policing” refers to the use of data analysis software to guide law enforcement; it employs data on crime and offenses to generate predictions on the places and times that future crimes may occur. The software developers promise lower crime rates without the investment of additional staff or money.

Predictive policing companies have been gaining popularity across the country, most recently with Oakland Mayor Libby Schaaf’s potential new investment of over $150,000 in PredPol Inc.’s software.

Yet, despite the bold claims made by  software developers, there has been no independent study conducted to confirm the effectiveness of predictive policing. Additionally, the negative implications of these methods for youth and communities of color have been grossly overlooked by law enforcement and completely ignored by software developers.

Crime forecasting can only be as good as its data. At the fundamental level, predictive policing is destined for failure.

The W. Haywood Burns Institute relies on law enforcement data to determine where inequalities exist within the system and to inform policy changes. We’ve discovered, and countless independent studies support, that there are vast racial and ethnic disparities throughout youth and criminal justice systems across the country. As long as these disparities exist, the implementation of predictive policing software in communities of color will lead to the continuation, if not worsening, of racial and ethnic disparities.

To use a simplified example –

Communities of color are policed at higher rates than predominantly White communities. Therefore, certain crimes that go unnoticed in White communities (e.g. marijuana possession) more often result in criminal charges in communities of color, despite similar usage across all demographic groups.

Predictive policing software documents arrests made, not the actual crimes committed. Because communities of color tend to experience vast disparities in arrest rates when compared to their White peers, those neighborhoods are shown to be “hot spots.” Thus, a cycle of over-policing in communities of color and the resulting racial and ethnic disparities in justice systems, continues to persist.

While the collection and analysis of data is critical to the justice system, the statistical methods used by predictive policing confuse correlation and causation to the detriment of the lives of people of color and their and communities.

Predictive policing methods should raise concerns for all communities. As a RAND report released in 2013 stated, “The very act of labeling areas and people as worthy of further attention inherently raises concerns about civil liberties and privacy rights.”

While Oakland may be attracted to the simplicity of fighting crime promised by PredPol, Inc., the decision to invest thousands into an unproven program is questionable at best. For a police department still under federal control for repeated abuses of power, the adoption of such a controversial program could have disastrous effects for communities of color throughout Oakland.

 

 

A Shocking Cost Some Pay More for than Others

The average annual cost to confine one youth: $149,000
The annual cost to send a kid to Harvard: $ 59,000

This simple comparison reveals the staggering cost of locking up youth. This cost is increasingly unpalatable as more evidence shows that confinement does not discourage future crime and may even encourage it. But, this accounts only for the cost of facilities for the time a youth is locked up.

What are the long-term costs of taking kids away from their families, schools and communities, and placing them in detention centers? And who is shouldering those costs?

A new report from the Justice Policy Institute, “Sticker Shock: Calculating the Full Price Tag for Youth Incarceration,” estimates these indirect and long-term costs and recognizes that the greatest burden falls most heavily on communities of color. The majority of youth involved in the justice system do not finish high school, thus severely limiting their employment opportunities and earning ability. Not only does this result in a loss of potential tax revenue, but governments also incur the cost of supporting many of these youth as adults through social services. Additionally, the report looks at the cost to the system of youth who are sexually assaulted while confined, as well as the cost of future crimes committed by youth who were not rehabilitated by the system and may even have left worse off than when they entered.

Accounting for all these measurements, the report estimates that the conservative cost for inappropriately and excessively confining youth is an estimated $8 billion dollars annually. On the high range of the spectrum, the United States loses an estimated $21 billion dollars annually. This loss of earning potential and threat of future violence largely impacts families and communities color whose youth are disproportionately arrested and placed out of home. Despite large reductions in confinement over the past decade, youth of color continue to be confined at rates much higher than their White counterparts, and these disparities are growing.

The W. Haywood Burns Institute’s “Unbalanced Juvenile Justice” data map provides an interactive format for understanding these disparities by state.

As we continue to better understand the long-term costs of confinement, it is imperative that we recognize how the disparities of our system impact youth, their families and communities long after they have been released.