How bail destroys lives and makes innocent people plead guilty

ByJames Dennin

When Chicago resident Lavette Mays, 47, was arrested in March 2015 after an alleged altercation with her mother-in-law, bail was set at $250,000. That’s unusually high, compared to both the national average of about $55,000, according to a 2015 Vera Institute for Justice study, and the $1,000 to $10,000 range local lawyer Dennis Dwyer estimates on his website as typical for domestic battery charges in Cook County.

Mays said in a phone interview she’s not sure why the prosecutors thought she was such a flight risk: The mother of two had professional contracts with the city, driving children to and from school in her neighborhood in the East South Side of Chicago. “I had a business and I had never been arrested before, so they told me it would be fine,” she said. “They told me I should be able to leave. It didn’t happen that way.”

The problem was that Mays couldn’t afford the 10% down or “$25,000 to walk,” so she waited more than a year in Cook County Jail for a judge to hear her case: “I sat there for 14 months because I wasn’t able to make bail.”

One theory that lawyers who later helped Mays have floated, she said, is she was hurt by coming to court with a private attorney — not a public defender — leading the judge and prosecutors to assume she had money. Her family at least had the means to hire the attorney, a seemingly rational decision, given that public defenders are notoriously overworked, spending as little as seven minutes on each case, according to a Mother Jones investigation.

But because she didn’t have the means for bail, Mays’ jail time cost her a business and home, separating her from her children, whom she could not support, from March 2015 to May 2016. She had no income while her legal costs mounted, and her kids had to leave home to stay with their father. Mays eventually pleaded guilty, but only because she didn’t want to keep waiting for her trial, she said.

“A lot of women are the backbone of their families, [so] when you’re incarcerating women, you’re incarcerating the family,” she said. “And yet they are ... giving you a sentence and charging you as guilty before being proved innocent.”

Bail isn’t being used as intended: an incentive to get the accused to show up for court. Instead, it ends up a punishment for being poor, convincing many who might otherwise fight charges to plead guilty.

Mays was eventually released, after a judge ordered two bail reductions and the Chicago Community Bond Fund stepped in. Without $7,500 from the fund, Mays would have been incarcerated for the entire time that her case worked its way through the courts, nearly 17 months.

She’s not alone. About 3 in 5 people who are admitted to local jails each year, according to Vera, have not yet been convicted of a crime. It’s hard to say how many of those millions are incarcerated solely because they can’t afford bail, but estimates vary from 14% to 39%, according to two recent studies. And no matter how you slice it, taxpayers foot a big bill: According to the Bureau of Justice Statistics, jailing people awaiting trial costs about $14 billion annually.

The consequences? Bail isn’t being used as originally intended: a financial incentive to get those accused — but not convicted — of a crime to show up for a court date. Instead, it ends up a punishment for being poor, convincing many who might otherwise fight their case to plead guilty, according to public defenders, social workers and formerly incarcerated sources consulted by Mic. This sentiment was also echoed by representatives of several bail funds, including Seattle’s Northwest Community Bail fund, a relatively new organization, and the Brooklyn Community Bail Fund, which has bailed out as many as 2,000 people since launching in 2015.

But this year the movement to abolish cash bail for nonviolent offenders has gained momentum. The Bronx borough president in New York has called for bail reform, as has California Sen. Kamala Harris and Kentucky Sen. Rand Paul, who in July introduced a bipartisan bill dubbed the Pretrial Integrity and Safety Act of 2017, to help states move away from a cash bail system. And other efforts are popping up in Texas, New Jersey, Chicago and Maryland, too.

So where is this movement heading — and why does it matter? Here’s what to know about the reasons for, effects of and problems with high bail in the United States, plus some potential ideas for solutions.

Charles Rex Arbogast/AP

Bail can make innocent people plead guilty.

Even seemingly low bail figures could be an incentive to plead guilty, experts point out: If you can’t come up with $400 in an emergency, it doesn’t matter whether your bail is $500 or $50,000. Kayla Reed, of the St. Louis Action Council, said her organization has helped clients with amounts as low as $87.

“I came into the job like most public defenders do: idealistic, optimistic, take one client at a time,” said Scott Hechinger, a staff attorney with the nonprofit Brooklyn Defender Services in New York. “But no matter how hard I tried, no matter how solid my legal theories were, no matter how much investigation I did … bail determined outcomes.”

Specifically, even innocent clients were uninterested in fighting their case, Hechinger said, if it meant remaining in jail.

How much of an effect does this pressure have? An incarcerated person will plead guilty to a misdemeanor 90% of the time, according to 2013 figures from the Brooklyn Community Bail Fund. But if they get out, that percentage falls to less than 40%. Taken together, an incarcerated person is nine times more likely to plead guilty to a misdemeanor than someone on the outside.

And BJS figures suggest this could be a growing problem: The median time from arrest to adjudication is a not-insignificant 92 days — and 95% of jail growth between 2000 and 2015 has been in the unconvicted population.

About 3 in 5 people admitted to local jails each year have not been convicted of a crime, according to Vera Institute for Justice

Frustrated, advocates are turning to an increasingly popular solution: simply pooling money to bail people like Mays out. Though efforts have existed for a while, only recently have bail funds begun formalizing their structures, said Pilar Weiss, who helped launch National Bail Fund Network in November. Right now, the NBFN works with about 18 bail funds around the country and Weiss estimates that another 10 or 15 bail funds are operating more informally. One of them, the Bronx Freedom Fund, recently secured a $50,000 grant from Goldman Sachs to expand their efforts.

As these funds have grown, activists and organizers have realized that they can achieve two ends. In the short-term, bail funds keep people out of jail. But in addition, by proving bailed out people will still show up to court, the funds are helping to build a longer-term case against the overuse of cash bail — suggesting the damage bail causes to people’s lives is unnecessary.

What sort of damage?

Darryl Brooks/AVN Photo Lab/sakhorn/Mic/Shutterstock

Bail can ruin lives.

The personal and financial consequences of high bail go far beyond unwarranted guilty pleas. Most who are incarcerated long-term lose their jobs, said Ezra Ritchin, a project director at the Bronx Freedom Fund, which has bailed out more than 1,200 people in its 10-year history.

“During those first few days of incarceration, things fall apart,” Ritchin said. “It’s very likely that you will lose your job because you’re not showing up to work. If you’re homeless, you might lose your space in your homeless shelter, because if you don’t sign in for a day or two, the shelter is going to forfeit that space.”

This can affect anyone. Before her incarceration, Mays owned her transportation company — but over the course of the 14 months she was locked up, Mays lost the vehicles she was leasing and her contracts with local schools. The parents she worked with found someone else to drive their kids to school.

“You can’t live without having a paycheck,” Mays said. “If there was one thing I could change, it would be the [difficulty finding] employment.”

Mays’ experience is not uncommon in Chicago: Bail amounts in the city are often set prohibitively high, said Sharlyn Grace, an attorney who co-founded the Chicago Community Bond Fund. High bail is one reason the majority of Cook County jail inmates are actually pre-trial, even though the vast majority — nearly three-quarters of admissions — are accused of nonviolent crimes, according to a 2012 report from researchers at Loyola University Chicago.

Yet another case out of Chicago shows the human consequences of high bail: James Williams, age 44 at his release, spent nearly a year in jail from November 2015 to November 2016 after being accused of selling $40 worth of cocaine — causing him to lose his job and miss the birth of his son, according to a Chicago Tribune report, since he could not afford the $1,000 bail.

And in other cities, too, long pre-trial incarcerations have tragic effects. In June 2015, 22-year-old Kalief Browder committed suicide. His brother partly blamed a three-year period Browder spent in Rikers Island jail complex in New York City awaiting trial. He was only 16 at the time of his incarceration, and had been accused of stealing a backpack with $700 inside. The case was eventually dropped when the plaintiff left the country.

Seth Wenig/AP

Bail can create a revolving door effect.

In an ideal world, bail would simply work as a check on flighty criminals, and would keep people out of jail. Indeed, bail was originally a means of reducing the prison population: In medieval England, magistrates traveled from county to county, and if you got arrested, a sheriff could use bail as a way to hold you until the magistrate came to hear your case: You’d hand over cash or collateral for your freedom, and get it back if you completed your court arrangement.

But in response to abuses in this ad hoc process, English Parliament later passed a law forbidding too-high bail, using language that was eventually incorporated into the Eighth Amendment, and is the foundation of U.S. bail laws today. For much of U.S. history, bail was used this way, to release pre-trial defendants but ensure they still had a financial incentive to appear in court.

Still, jail populations have swelled in the last 30 years, in part from drug arrests, which tripled between 1981 and 2006. And bail has come to play a harmful role in the lives of the accused, many of whom end up trapped by it. The groups in question are vulnerable: Barely half of the U.S. jail population has a high school diploma, and roughly 15% of men and 31% of women in local jails have a serious mental illness, studies suggest. Yet these institutions rarely have sufficient health care or addiction services — creating a revolving door effect.

“Jails really are not particularly well-regulated in terms of the health care they provide,” said Josh Saunders, a public defender in Seattle who helped launch bail funds in Brooklyn and the Pacific Northwest. He elaborated:

“You’ll often have someone who is taking... an anti-psychotic [medication] they need to be stable, and the jail will make its own determination that they don’t need get radical disruption in the course of treatment, and they’re more likely to have a disciplinary action against them ... their jail stay is likelier to be longer. Maybe they haven’t had the medication for a month when they get out? Then they’ll get picked up again.”

After all, many accused individuals “can’t come to court because of ... mental health, drug addiction, lack of transportation, child care and jobs” in the first place, said Atara Rich-Shea, operations director of the Massachusetts Bail Fund. “It’s like punishing you for not paying your phone bill by saying you’re never allowed to have a phone again.”

These are all reasons bail funds can be so vital: by acting quickly, placing case workers in arraignment court or stopping defendants on their way to intake. When Christina — a Bronx Freedom Fund client who asked that her name be changed to protect her identity — was arraigned on misdemeanor assault with bail set at $500, the fund was able to have her released in 90 minutes.

Not only was Christina able to keep her part-time job as a cook, she was able to continue attending classes and eventually sit for certification exam to become a medical assistant. She didn’t need to find someone to take care of her young son, and when she showed up in court three months later, the charges were dismissed.

“I don’t think people understand how bail works,” Christina said in an email. “People don’t understand that if you can’t pay bail you will be subjected to incarceration. You’ll lose your livelihood.”

Bail funds, unlike the commercial bail industry, help accused individuals without the expectation of payment. This is an important distinction, as bail bondsmen — who may carry weapons and act as bounty hunters — typically charge a 10% fee, Mother Jones reports. The multibillion-dollar for-profit industry, critics argue, is poorly regulated and can leave defendants drowning in debt.

Joamir Salcedo/Mic

Prosecutors and judges may use bail coercively.

Of course, many judges set high bail simply because they are worried about public safety, as Minnesota district judge Kevin Burke, a past president of the American Judges Association, told the Pew Charitable Trusts: “The fear is I’m going to let somebody go and they’re going to go out and do something terrible, or they won’t come back, so I’ll set bail.”

But judges may sometimes use bail inappropriately, argues Josh Spickler — a former public defender and executive director of Just City, which operates bail funds in Tennessee.

“When a judge sets you a $50,000 bond, they do not want you to get out of jail until you’ve pled guilty,” Spickler said. “The judges use bail for a specific reason, and when there’s a bail fund around to undermine that system, that takes control away from the judge, his or her ability to keep a human being in a cage or let them out. They don’t like that.”

A perhaps bigger problem, said the Brooklyn Defenders Services’ Hechinger, is that in most jurisdictions, prosecutors request bail, not judges.

“There’s a common misconception that [the problem stems from] statutes and judges,” Hechinger said. “[But] in both misdemeanors and felonies, it’s prosecutors who are making the decision to request bail in split seconds, solely based on the charge and the rap sheet; the worst things a person has been accused of doing.”

Is this necessary? Bail fund pros say no. “There’s no data that says that poor people don’t come to court,” said Rich-Shea of the Massachusetts Bail Fund. “That doesn’t exist. Bail is a solution with no problem.” Both the Bronx Freedom Fund and the Brooklyn Community Bail Fund told Mic their court attendance rate is about 95%.

Joamir Salcedo/Mic

“Our clients, they can’t afford $500 bail,” said Peter Goldberg, executive director of the Brooklyn Community Bail Fund. But “they’re not fleeing to Mexico. They’re not fleeing to New Jersey.”

Bail comes at a cost to taxpayers.

Finally, the costs of maintaining a large incarcerated pre-trial population are substantial.

“You think about the grand irony of this, you’re talking about one of our clients who’s potentially a homeless person who steals two sandwiches and a drink from a store, maybe $10 worth of food,” Saunders said. “Then they have $20,000 bail set in their case, can’t make that and then end up costing the taxpayers $200 day. Say they’re in for five to 10 days, that’s $1,000 to $2,000 to incarcerate someone who stole $10 worth of food. The futility of the whole thing seems pretty stark.”

Excluding costs of maintaining facilities, a recent report from the Pretrial Justice Institute estimates that the cost of incarcerating America’s pretrial population is $38 million each day — again, that is close to $14 billion annually.

Could some forms of cash bail be abolished?

In part because of the data supplied by bail funds, the movement to abolish cash bail for nonviolent offenders has started to gain momentum. Though every state is different, the last six months alone have seen victories for bail reform advocates in the states of New Jersey and Maryland, as well as local rulings in Houston, Texas, and Cook Country in Illinois. An ambitious law to reform California’s bail system is also working its way through the legislature.

“What’s happening in the bail reform landscape is varying so greatly from state to state,” the National Bail Fund Network’s Weiss said. “The system is so different in every place ... but any almost jurisdiction you look at — whether it’s Rikers Island or rural Alabama — you have potentially innocent people and they’ve had bail set, and they’re just sitting in jail.”

Now, not everyone supports the push to abolish cash bail — or even efforts to restrict its use. Beth Chapman, chair and board president of Professional Bail Agents of the United States, who also owns Da Kine Bail Bonds in Hawaii, characterized the bail reform movement as naive. Chapman, whose Bail Agents organization represents 15,500 agents nationwide, is currently advocating against efforts in New Jersey to reduce the use of cash bail.

“We’re essentially coddling the criminal.” — Beth Chapman, chair and board president of Professional Bail Agents of the United States

In a phone interview, Chapman said that while her organization is not categorically opposed to bail reform — particularly efforts that focus on nonviolent, first-time offenders — she believes cash bail makes sense for repeat offenders and others. “What we’re doing is, we’re essentially coddling the criminal,” Chapman said. “They’re not there because they’re poor, they’re there because they broke the law ... I can tell you this whole bail reform is all fake news ... in practicality it’s never going to work.”

Chapman pointed to a recent wrongful death lawsuit in New Jersey, which she and her partner Duane “Dog” Chapman, of Dog the Bounty Hunter-fame, traveled to New Jersey to support. In that case, 30-year-old Jules Black allegedly shot Christian Rodgers, 26, after being released without bail following a gun possession arrest. Though Black’s attorneys maintain their client’s innocence, Rodgers’ mother blamed bail reform for her son’s death. According to the Associated Press, it’s at least the second such lawsuit being supported by the for-profit bond industry.

Chapman also pointed to the case of Christopher Wilson, a convicted sex offender reportedly released after being accused of trying to solicit sex from a 12-year-old. Together, she said, these cases are representative of the types of people pre-trial release can put back on the streets.

But defenders of bail reform characterize such cases as relatively anecdotal, and point to the fact that people who are released on cash bail commit crimes upon their release as well. New Jersey state judiciary data reported by suggests that nearly 12% of people who posted bail under the pre-reform system were charged with a new offense while awaiting trial.

In any case, expanding pre-trial release is far from a silver bullet. In an interview in February with New Jersey Advance Media, published shortly after the laws went into effect, prosecutors, defenders and court administrators characterized New Jersey’s new bail system as a success — while also conceding tweaks to the policy might be necessary. Later, in May, for example, the New Jersey Supreme Court adopted tighter restrictions for multiple offenders and people accused of gun crimes.

One possible solution — at least for those nonviolent offenders the state simply hopes will show up for a court date? There’s evidence providing more services, like transportation and text message reminders, is effective and far cheaper: A recent Human Rights Watch study found that incarcerating someone is about 19 times more expensive than probationary services.

Yet another idea, as Cherise Fanno Burdeen, chief executive of the Pretrial Justice Institute, wrote to the New York Times, is to “replace money bail with evidence-based risk assessments, based on the data that best predicts court appearance and likelihood of rearrest before trial.”

Alas, until a compromise is found, victims of high bail like Mays, Williams, Browder, Christina and others may continue to suffer consequences to their families, finances, livelihoods and even lives.