CRF Blog

The Bail Trap

by Bill Hayes

In The Bail Trap for New York Times Magazine, Nick Pinto reports on how bond court keeps many people behind bars simply because they cannot afford bail.

Of the 2.2 million people currently locked up in this country, fewer than one in 10 is being held in a federal prison. Far more are serving time in state prisons, and nearly three-quarters of a million aren’t in prison at all but in local city and county jails. Of those in jails, 60 percent haven’t been convicted of anything. They’re innocent in the eyes of the law, awaiting resolution in their cases. Some of these inmates are being held because they’re considered dangerous or unlikely to return to court for their hearings. But many of them simply cannot afford to pay the bail that has been set.

Occasionally, these cases make the news. In June, Sandra Bland was found dead in her cell in Texas after failing to come up with $500 for her release. But often, they go unnoticed. The federal government doesn’t track the number of people locked up because they can’t make bail. What we do know is that at any given time, close to 450,000 people are in pretrial detention in the United States — a figure that includes both those denied bail and those unable to pay the bail that has been set. Even that figure fails to capture the churn of local incarceration: In a given year, city and county jails across the country admit between 11 million and 13 million people. In New York City, where courts use bail far less than in many jurisdictions, roughly 45,000 people are jailed each year simply because they can’t pay their court-assigned bail. And while the city’s courts set bail much lower than the national average, only one in 10 defendants is able to pay it at arraignment. To put a finer point on it: Even when bail is set comparatively low — at $500 or less, as it is in one-third of nonfelony cases — only 15 percent of defendants are able to come up with the money to avoid jail.

Bail hasn’t always been a mechanism for locking people up. When the concept first took shape in England during the Middle Ages, it was emancipatory. Rather than detaining people indefinitely without trial, magistrates were required to let defendants go free before seeing a judge, guaranteeing their return to court with a bond. If the defendant failed to return, he would forfeit the amount of the bond. The bond might be secured — that is, with some or all of the amount of the bond paid in advance and returned at the end of the trial — or it might not. In 1689, the English Bill of Rights outlawed the widespread practice of keeping defendants in jail by setting deliberately unaffordable bail, declaring that ‘‘excessive bail shall not be required, nor excessive fines imposed.’’ The same language was adopted word for word a century later in the Eighth Amendment to the United States Constitution.

But as bail has evolved in America, it has become less and less a tool for keeping people out of jail, and more and more a trap door for those who cannot afford to pay it. Unsecured bond has become vanishingly rare, and in most jurisdictions, there are only two ways to make bail: post the entire amount yourself up front — what’s called ‘‘money bail’’ or ‘‘cash bail’’ — or pay a commercial bail bondsman to do so. For relatively low bail amounts — say, below $2,000, the range in which most New York City bails fall — the second option often doesn’t even exist; bondsmen can’t make enough money from such small bails to make it worth their while.

With national attention suddenly focused on the criminal-justice system, bail has been cited as an easy target for reformers. But ensuring that no one is held in jail based on poverty would, in many respects, necessitate a complete reordering of criminal justice. The open secret is that in most jurisdictions, bail is the grease that keeps the gears of the overburdened system turning. Faced with the prospect of going to jail for want of bail, many defendants accept plea deals instead, sometimes at their arraignments. New York City courts processed 365,000 arraignments in 2013; well under 5 percent of those cases went all the way to a trial resolution. If even a small fraction of those defendants asserted their right to a trial, criminal courts would be overwhelmed. By encouraging poor defendants to plead guilty, bail keeps the system afloat.

‘‘What, did they arrest all of Brooklyn today?’’ one court officer asked another on a recent Sunday night in one of the two bustling arraignment courtrooms in Downtown Brooklyn. Defendants, a vast majority of them black, paraded past the judge in quick succession: Unlicensed operation of a motor vehicle. Open container of alcohol in public. Marijuana possession. Riding a bicycle on the sidewalk. Misdemeanors, many of them minor, some aggravated by an outstanding bench warrant for failure to appear in court on another case, failure to complete court-ordered community service or failure to pay a fine. Hundreds of people were awaiting arraignment, first in central booking across the street, then in cells on the ninth floor and finally in a small communal cell called ‘‘the pen’’ behind the arraignment courtrooms on the ground floor. On this night, there were more than a dozen men in the cell waiting to see a lawyer, pacing, sitting on benches, crouching in corners. [more]