On any given day, nearly half a million people languish in jail cells across America, waiting for their criminal cases to move forward, severed from their lives and communities even though they have not been convicted of a crime. People in pretrial detention now make up more than 2/3 of America’s jail population. They are presumed innocent under the law, yet they suffer the harms of incarceration because they can’t afford bail.
Our current cash bail system criminalizes poverty and is a structural linchpin of racial inequality. The human toll of this system is levied almost exclusively on the poor, and disproportionately on communities of color. Pretrial incarceration affects a defendant’s ability to maintain employment, pay their rent, access mental and physical healthcare, and receive support from family and friends. Inside jail, people risk sexual violence, the deterioration of their mental and physical health, and the infliction of lasting trauma. Some feel pressured to accept an unjust or wrongful conviction just to go home. As with all other areas of the criminal justice system, people of color bear a far heavier burden due to an enduring legacy of racism and economic disenfranchisement. Cash bail requirements are a form of wealth-based discrimination.
The cash bail system rests on the false assumption that people will not return to court unless they stand to lose money. In cities across America, The Bail Project, a non-profit organization that funds bail for clients, has demonstrated that this is not the case.
The financial costs to taxpayers generated by incarcerating approximately 500,000 people pre-trial due to their inability to pay bail are estimated at $14 billion annually. Meanwhile the $2 billion bail industry with its well-documented predatory and exploitative practices, extracts money from precisely those communities that have the fewest resources.
Americans are taught that the bedrock of the criminal justice system is that you are presumed innocent until proven guilty in a court of law. Pretrial detention upends this basic legal protection by turning the process into the punishment and then coercing people to forfeit their rights and plead guilty. It is also counterproductive – jails don’t heal, they harm. Often they exacerbate the circumstances driving a person into contact with law enforcement in the first place. When you consider the destabilizing and traumatic impact that incarceration can have on a person and their family, it is no surprise that, as research shows, the longer someone is held in pretrial detention, the more likely they are to be re-arrested later.
While the nonmonetary option of releasing people on a promise to return to court (“personal recognizance”) is already available to judges, many use it in only a fraction of cases. Barriers to wider use of nonmonetary options include:
- the myth that people accused of crimes will not return to court unless they stand to lose their bail money,
- racial bias in decisions about who is allowed to go free while their case is pending,
- few incentives for judges to grant release on personal recognizance,
- judges’ fears of public blame and media coverage if the person is released and re-arrested,
- limited legislation that sets safeguards to protect against unwarranted pretrial detention, and
- lack of public investment in services to support people in coming back to court as needed, while failing to address root causes of criminal justice involvement.
According to the Bail Project, over 90% of their clients appear for their court dates. They show up because they’re provided with the supports they need and because they genuinely want to resolve their cases. In addition, money bail is not necessary to ensure a return to court by those who are not a flight risk. Those who are arrested who live in poverty are hardly a flight risk since they lack the means and resources to flee.
To learn more about these issues, watch this TED talk with Robin Steinberg.
REFORMING PRETRIAL JUSTICE
1. Decriminalization. Congress and state legislatures have expanded statutory criminal codes through counterproductive and discriminatory policies such as the “war on drugs” and the explosion of “quality of life” offenses (e.g., vagrancy, loitering, disorderly conduct, disturbing the peace, etc.) which are typically associated with poverty. Jurisdictions can begin by narrowing their criminal statutes and decriminalizing behaviors that are better addressed through a public-health and community-investment approach, outside the criminal legal system. Transformative pretrial change should begin by ensuring that arrest and incarceration are not the default responses to issues of poverty, racism and public health in the first instance.
Decriminalization makes communities stronger and safer by allowing people to remain in their communities, to work, to attend school, and to care for their families rather than destabilizing them.
2. Focus on solving common obstacles to court return rather than the minimal risk of flight. There is a common misconception that court nonappearance is at crisis proportions and that people who miss court do so deliberately. Data tell a very different story. In reality, most instances of nonappearance result from common obstacles that include work schedule conflicts, childcare responsibilities, lack of access to adequate transportation, healthcare issues, and difficulty navigating confusing court systems. The financial burden of cash bail, rather than eliminating these obstacles, can only exacerbate them. Pretrial support should focus on addressing these obstacles and making it easier for people to return to court. Willful flight from a jurisdiction is a very rare cause of nonappearance and the system should not be designed around that scenario.
3. Invest in court reminders, free or subsidized transportation to court, and childcare assistance. Experience shows that simple measures such as text and phone call reminders about court dates, transportation assistance to and from court, and problem-solving around childcare, substantially improve appearance rates. Sometimes all that is needed is a conversation to talk through plans to get to court. As noted above, the vast majority of Bail Project clients appear for over 90% of their court dates after receiving these voluntary, supportive interventions.
4. Develop effective systems of voluntary referrals to social services and community-based organizations. Arrests throw lives into turmoil and most often impact people whose circumstances are already precarious. Some people’s needs, such as drug addiction, unemployment or homelessness, are not solved by pretrial detention. The pretrial system can either be a profound disruption or a positive intervention point for connecting people with supportive services such as housing assistance, job training, and substance abuse treatment. While there is no one correct way to structure the delivery of supportive services, there are a few important guideposts.
First, funding independent organizations that provide these services is a necessary component of transforming pretrial justice. Existing community-based organizations, networks, and nonprofits should be given the greatest role possible, with the goal of empowering communities. Referrals to these services should be offered rather than required and must be independent from people’s criminal cases. Participation and compliance should not negatively impact a person’s criminal case.
Second, jurisdictions should not house supportive services within probation departments or other law-enforcement agencies. The sole functions of pretrial services should be to facilitate return to court and respond to the underlying needs of the accused. People are far less likely to have honest conversations about issues in their lives such as drug addiction, mental health, and anger management if these conversations are with someone they associate with law enforcement. In addition, pretrial services personnel serve people who are presumed innocent, many of whom will never be convicted. It is unrealistic to expect law enforcement agencies, who are used to working with people convicted of crimes, to respect the expanded rights of legally innocent people.
5. Invest in social services and resources. Transformative pretrial change will inevitably require up-front investment. However, jurisdictions can expect to see cost savings over time, as the size of the pretrial detention population decreases and jails close. All cost savings attributable to pretrial change should be reinvested into the community, shifting resources away from incarceration and toward long-term investments that actually make communities safer and help people thrive, such as education, health care, and employment services. Investments in organizations focused on reducing violence and building stronger communities lead to better safety than policing and punishment.
6. Make nonessential court hearings optional. From arraignment to verdict, a typical criminal case often has far too many court dates, some for procedural matters handled entirely by lawyers, such as serving motions and settling discovery disputes. For each of these court dates, a person must make arrangements to come to court, including finding childcare and transportation, and will often miss an entire day of work or school for a five-minute court hearing concerning the scheduling of an adjournment and procedural matters. Just as in civil courts, criminal courts should require a person to appear only for significant substantive proceedings and allow their counsel to represent their interests during all other court dates.
7. Improve court scheduling and rescheduling practices. Judges should schedule required court dates for specific time windows, so that people do not need to appear in court in the early morning for proceedings that might not begin until the late afternoon, or vice versa. This can minimize the amount of disruption in a person’s employment and other responsibilities, and reduce failure to appear for involuntary reasons. For example, court dockets could be scheduled in two-hour intervals or in morning and afternoon shifts. Courts should also implement uniform rescheduling policies that allow people to reschedule a certain number of court dates per case without the court’s permission, in case last-minute obstacles, such as a medical or childcare emergency, arise. Courts should maintain hotlines or websites that allow for ease of rescheduling.
8. Institute grace periods for nonappearance. Warrant grace periods give the accused a certain amount of time to appear in court after a missed court date before a judge may issue a bench warrant. Grace periods for nonappearance save officer time and decrease costs for jurisdictions by avoiding unnecessary arrests and periods of incarceration. After the requisite time period, the court may issue a bench warrant if the court has made reasonable, documented efforts to notify the person and facilitate appearance. There are a number of ways to facilitate warrant grace periods. For example, courts may create an Open Hours Court where anyone who has missed a court appearance can appear and reschedule within a certain amount of time without fear of returning to jail.
9. Mandate the use of noncustodial citations in lieu of arrest. For those offenses that remain classified as criminal, statutes should require police to issue a noncustodial citation in place of arrests for the broadest amount of people possible. Noncustodial citations eliminate the degrading and often painful process of being handcuffed and arrested. They also reduce harms such as separating parents from children, lost work, and missed school and medical appointments. In addition, mandatory citation policies offer cost savings for jurisdictions in officer time and detention costs. Citations should not impose conditions of release beyond a promise to appear in court, and forms should be clear and easy to follow. In 2016, after New York City redesigned its summons forms to make it easier for people to respond appropriately, failures to appear decreased by 13% and roughly 17,000 arrest warrants per year were prevented.
10. Let communities decide what they need. Investment decisions should be determined by the community, through processes to identify the root causes of harm and fund community-led work that helps address those issues outside the paradigm of policing and imprisonment. Jurisdictions should explore and expand models that enable community members to identify their community’s most pressing needs and guide investment decisions.
11. Ensure accountability and transparency. In order to ensure meaningful and enduring reform—and to avoid unintended negative consequences—robust data collection is essential: jurisdictions must collect and share data on a regular basis to evaluate progress, identify discriminatory patterns, and hold the criminal legal system accountable to the communities it serves.
12. Support The National Bail Out and implement its toolkit in your community. The group has produced a Bail Out Toolkit for use in communities and by local organizations. This toolkit provides an overview of the bailout process; answers frequently asked questions about bail and bail reform; offers a step by step guide on how to develop a bail out and a community-based supportive services plan including communications and fundraising tips; and gives resources for those interested in advocating for the end of money bail.
13. Support organized efforts to end cash bail by donating to The Bail Project. The Bail Project is a non-profit organization that pays bail for people in need. Bail is returned to the fund at the end of a case and is re-used to free someone else. Over the next five years, The Bail Project plans to open dozens of sites in high-need jurisdictions with the goal of paying bail for tens of thousands of low-income Americans, all while collecting stories and data that prove money bail is not necessary to ensure people return to court.
14. Elect political candidates who are committed to reforming the current cash bail system.
If history has shown us anything, it is that we cannot arrest and incarcerate our way out of systemic social problems. We need to commit ourselves to a future where no human being is forced to deteriorate in a jail cell – a future where a more equitable approach to social issues is accomplished. Pretrial reform is one step in that direction but it must be accompanied by investments in alternatives to incarceration, community empowerment, police accountability and changes in the way we respond to violence and other serious crimes.
There is no question that any form of preventive detention must be radically safer, more humane, and more conducive to rehabilitation than today’s jails. And it is equally essential that we continue to challenge ourselves to move past the paradigm of incarceration in search of real solutions to crime. We have the opportunity to achieve the vision of an America where freedom is truly free and all people can thrive. The time to seize that opportunity is now.