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What is bail?

Technically, the word bail refers to any device or method used by the courts to ensure that a person charged with a crime will return to court.  It could include having a respected community member vouch for that person or having the accused promise to hand over some item of property if they fail to appear.  In common usage, in the United States, bail generally refers to an amount of money, set by courts, that the accused must pay to be released while waiting to go to trial or otherwise resolve their case.  The money is held until the case is resolved, then returned to the person who paid it. 

How are bail amounts set?

Each state has a different system.  Different counties within the states have variations on those systems and different judges have their own practices, so there is no one answer.  In the most general sense, when an accused person appears in court, the judge decides whether to demand money bail to guarantee their appearance at trial.  If not, the accused must only promise to return to court and may have to abide by conditions, like not having contact with an alleged victim.  The accused is then released on their “own recognizance,” without payment.

 If the decision is to demand cash bail, then the judge must set the amount.  In many states, the amount is tied to a bail schedule, which recommends specific amounts for each type of crime.  Usually judges have discretion to set amounts above or below the schedule.  In many states and for certain crimes and under certain circumstances, judges can hold people in jail without setting bail, with no  chance of release before trial.  This is a form of “preventive detention,” and generally applies only to very serious crimes.

What are judges supposed to consider when they decide to release someone or set bail?

Judges are supposed to consider whether a person is likely to appear in court or if they are a “flight risk.”  In many, though not all, jurisdictions, judges also consider whether the accused is a danger to the community or to particular individuals.  They look at factors including the charges alleged, the facts of the crime as alleged by the prosecutor, the person’s prior criminal record, and any history of missed court dates.  Often the prosecutor will contend that the accused is dangerous and therefore should not be let out of jail, or will point to some previous missed court date as evidence that they are unlikely to return to court on their own recognizance

The accused may present favorable information.  In theory, the defense attorney can present evidence of the person’s ties to the community, history of education or employment, or other positive attributes.  The defense attorney can locate family members and friends who may provide a support network and assurances that the person can be released safely.  Unfortunately, accused people who cannot afford private counsel usually meet their appointed lawyer shortly before the arraignment and bail hearing.  These lawyers usually have large caseloads and rarely have time for the in-depth conversation required to get information that might strengthen a bail argument.

Bail arguments themselves tend to be informal hearings with little evidence and argument, and few formal procedures.  They rarely last more than a few minutes.  Judges rely on bail schedules or their habitual practice in determining the amounts, usually not accounting for the accused’s financial circumstances.  Because the hearing is so quick, judges rarely get a full picture of the accused’s individual circumstances, and too often rely on their own stereotypes and biases.  Some judges deliberately set bail they believe the accused cannot afford to ensure that person will remain in custody.

What happens to people who can’t afford the full amount of bail?

Bail is often set very high.  In California, for example, the median bail set was $50,000 in 2015. Few people can afford to pay the full amount. People who can’t pay generally have two choices: stay in jail until their case is resolved, or see a bail bondsman.

How do bail bonds work?

Bail bondsmen will pledge the full amount to the court for a fee.  The fee is negotiated, but usually is in the range of 8 to 10 percent of the full bail amount.  Someone with a $50,000 bail might pay $5,000.  Unfortunately for the person paying the fee, that money is not refundable. Even if the person paying the fee is found “not guilty” or the prosecutor never files the case, the bondsman’s fee is not returned.

Many people do not have enough money to pay a bondsman’s fee.  Sometimes the bondsman will negotiate a payment plan, asking for a down-payment, as low as 1 percent of the total, with monthly payments.  Bondsmen continue to collect their payments long after the case is resolved.

What happens to people who can’t afford the bondsman’s fee?

Some people go into debt borrowing money from family members, friends and neighbors.  Sometimes they sell cars or personal property.  They forego necessary expenses to pay on the bond. A woman in California described having to cut back on meals and telephone services and not being able to afford Christmas presents so she could pay for her son’s release from jail. Paying money for pretrial freedom causes extreme financial hardship for many people, their families and their broader communities.  Studies have shown that 47 percent of people in the US do not have $400 readily accessible for such an emergency, and 40 percent would not be able to raise $2,000 in a month.

Those who do not have the money or cannot borrow it stay in jail until their case is resolved.  Either they sit in jail for weeks, months and sometimes years, until the courts can hold a trial to decide whether they are guilty of a crime, or they plead guilty so that they can get out of jail sooner.  Those who sit in jail may lose jobs, miss school, have children taken from them, suffer from lack of health care, and miss rent payments, leading to homelessness. 

Those who stay in jail because they cannot afford bail suffer being locked up behind bars, exposed to bad food, unhealthy living conditions, violence from guards and other incarcerated people, little medical care, boredom and disconnection from family and friends. They also may have more difficulty working with their lawyer to prepare their defense, and will appear in court in prison garb, most likely having slept poorly and had little ability to tend to their personal appearance.

People plead guilty to get out of jail sooner?  Explain how that works.

Often the prosecutor will offer the accused person who is in custody a deal: if you plead guilty, the sentence will be for less time in jail than you would have to spend waiting for your trial.  For example, in California, on a felony charge, the minimum amount of time to get to trial is about 90 days.  If a prosecutor offers a jail sentence of 60 days in exchange for a guilty plea, then the accused person will have a miserable choice—accept a criminal conviction (and all its consequences) regardless of actual guilt, or spend 30 more days than that in jail just to have their day in court.  In many cases, the choice is even starker, as the prosecutor offers a “time served” sentence, meaning a guilty plea will get the accused out of jail the same day.

This practice is extremely prevalent in courts throughout the United States.  Human Rights Watch analyzed data from six counties in California and found that between 70 percent and 90 percent of  people facing misdemeanor or low-level felony charges pled guilty and were released before their first possible trial date.  In Sacramento county, approximately 80 percent  plead guilty for time served

If prosecutors contend that a person is too dangerous to release before trial, why are they comfortable pursuing plea deals that lead to that same person’s immediate release?

The reality is that in many cases, prosecutors are simply using the prospect of pretrial detention as leverage to pressure an accused person into pleading guilty and foregoing their right to trial. Judges, for their part, are often inclined to set bail at unreasonably high levels. This all makes more sense when one understands the institutional pressures on judges and prosecutors. 

Prosecutors generally focus on getting convictions as efficiently as possible.  They often have very high caseloads that will be unmanageable if too many people litigate their cases or go to trial. Prosecutors know that people who are out of custody tend to fight their cases longer, file more motions, prepare their defenses more effectively, and have a better chance of winning or getting a reduced charge. 

On the other hand, they know that people in custody typically want to do anything they can to get out of jail.  Jail is extremely unpleasant—the experience is one of crushing boredom and physical discomfort at best, and of violence and disease at worst. People in jail need to get back to their families, their jobs, their health care.  People in jail, even if they have a good defense to the charge, feel tremendous pressure to plead guilty if it will get them out sooner.  Prosecutors often ask for bail because it leads to jail when people cannot pay, and incarcerated people are easily pressured into guilty pleas.

Many judges are similarly motivated.   Human Rights Watch found that in one California  county, people in custody took a median of 20 days to resolve their cases, while people who had bailed out took 100.   If too many people are fighting their cases, court calendars will slow.  Judges feel tremendous pressure to move their caseloads, which are often unreasonably large.  Individual judges have told Human Rights Watch  that their supervising judges warned them against releasing too many people pretrial, as it would inhibit the efficiency of the courts.

In some cases, judges and prosecutors do have legitimate concerns about ensuring appearance at court dates or releasing someone who might commit a new crime. But far too often, a major motivation in setting bail is to keep cases moving rapidly by creating pressure on jailed defendants to plead guilty.

What is wrong with pressuring defendants to plead guilty?

The courts are supposed to be just.  Courts should decide guilt and innocence through fair processes and not by coercing poor people into pleading guilty by locking them in jail cells until they give up.  The courts should not punish people before they are even convicted of any crime.  Courts should not provide a higher quality of justice to wealthy people who can purchase their pretrial freedom and thus improve their chances of winning their cases. They should not embrace a logic of “efficiency” that leads them to trample on defendants’ fundamental rights.

Courts’ “efficiency” in leveraging pretrial incarceration to secure guilty pleas detracts from the fairness of outcomes and the legitimacy of the US court system. It also fuels the problem of “mass incarceration” or “over incarceration.”  The US has the second-highest rate of incarceration in the world.  People of color are imprisoned at vastly higher rates than white people; poor people more than wealthy.  Pretrial incarceration exacerbates all of these problems. 

How does bail contribute to inequalities in the criminal justice system?

The use of money bail contributes to a two-tiered justice system.  Those who can afford to pay for their freedom do so and reap the benefits.  People fighting their cases who are not in custody do not face the pressure to plead guilty to get out of jail.  They can meet with their lawyers in a more relaxed setting. They can help investigate their cases. They can work or go to school or participate in programs that will improve their standing in court. They can go to court in street clothes, showered and groomed, looking like real people and not just any other criminal in a jail uniform, like those fighting their cases while in custody.  Poor people who cannot bail out are pressed to plead guilty without fully fighting their cases.  They are subjected to miserable living conditions in custody and a variety of barriers to assisting with their defense.

As people in custody get worse results in court than those out of custody and a primary factor in deciding who stays in and who gets out is wealth, this system discriminates against poor people.  As wealth often correlates to race and black people are booked into jail at much higher rates than white people, this wealth based discrimination also fuels racially disparate outcomes.

Which human rights are implicated in pretrial detention and bail?

International human rights law permits the use of pretrial incarceration or release with conditions, including money bail.  However, any pretrial restrictions must be consistent with the right to liberty, the presumption of innocence, and the right to equality under the law.  The approach many US courts take to using money bail is in direct conflict with these rights and often violates them on a wide scale. Courts that deliberately set prohibitively high bail to coerce guilty pleas, or with the tacit aim of ensuring that low-income defendants will not able to afford the cost of their freedom, are subjecting people to arbitrary detention as defined under international human rights law. 

Is there some other way to guarantee that people will appear in court besides making them pay bail?

A large percentage of people who miss court appearances do so because of negligence  -- they forget, or they get the wrong court date, or some structural barrier to appearance  --they can’t miss work, can’t find child care, or lack transportation, rather than a deliberate effort to avoid facing charges.  Many people who face criminal charges are poor, have mental or other illnesses, or are homeless.  Often, people in such circumstances are more susceptible to missing court dates.

Many studies have shown that simple reminder calls and text messages to accused people vastly reduce the rates of failure to appear. Pretrial services agencies can focus on these reminders and on working with people to remove barriers to court appearance, including helping with transportation and child care.

It’s also important to emphasize that one obvious way to reduce missed court appearances is to stop criminalizing conduct that does not warrant any criminal sanction, like drug use and sex work.  These cases account for a large percentage of the courts’ work.

Certain people, often those accused of more serious crimes, really do represent a flight risk—that is, there are reasons to believe that they will leave the jurisdiction to avoid prosecution.  However, courts should hold serious evidentiary hearings, requiring actual evidence of risk, before ordering bail or conditions of release to guard against it.

Shouldn’t we keep dangerous people in custody, so they don’t harm others while waiting for trial?

If a prosecutor can prove, with actual evidence that the accused person has an opportunity to rebut, that a defendant is a danger to some individual or the community, then it is appropriate to detain that person pretrial or release them with conditions to guarantee safety.  However, there needs to be real evidence.  For example, if there is proof that the person has made threats against a potential witness or has carried on a pattern of violent conduct that is not likely to stop, then a judge may be justified in ordering pretrial incarceration. 

This decision should not be made based on guesses, or in reliance on illegitimate proxies for risk.  Judges should not simply look at a person’s charges or defer to a statistical prediction. 

Money bail is in any case a highly imperfect way to protect from future harm. Someone with money may pay for their release and return to stalking their victim or threatening a witness.

Are there efforts to reform or change the bail/pretrial detention system in the US?

There is an ongoing recognition that the money bail system is unfair and ineffective.  Several states, including Kentucky, New Jersey and now Alaska, have implemented some type of bail reform, as have many individual counties in other states, like Lucas County, Ohio and San Francisco, CA.  Other states, like California and New York, are considering changes to their laws.

In 2017, Senators Kamala Harris (D-CA) and Rand Paul (R-KY)  proposed a federal bail reform bill  designed to encourage states to transform their systems away from money bail.  The federal bill would offer states funding if they move away from money bail and instead adopt a system based on profile based risk assessment.  The amount of federal money offered, up to $10 million, is probably not enough by itself to get states to change.  In addition, to the extent the money will motivate states to change, the emphasis on profile based risk assessment excludes other methods of bail reform.  As of early 2018, the authors of this bill may be considering changing that provision to encourage other methods of bail reform

How Does Profile Based Risk Assessment Work?

Actuarial or profile-based risk assessment tools put aggregate data about a wide population through a mathematical formula or algorithm in an attempt to estimate the statistical likelihood that a given person  will engage in some future misconduct, like committing a crime or missing a court date.  They do so by looking at certain characteristics of the individual and measuring the percentage of a pool -- or dataset -- of other people with the same characteristics who committed misconduct. 

In a highly simplified, but illustrative version, if 10 out of 100 people who have two misdemeanor convictions and three traffic violations missed a court date, assuming those were the only variables considered, then the tool would estimate a 10 percent risk that an individual with three traffic violations and two prior misdemeanor convictions would miss a court date if released.  Of course, the actual tools are more complex and meticulous in their design-- they use more factors and may weigh those factors differently, but the illustration serves to capture the basic idea behind their approach.  Each tool uses different factors, though most used in pretrial incarceration decisions presumably tend to stress criminal history.

What are the advantages and disadvantages of using profile based risk assessment to help pretrial incarceration decisions?

Proponents of profile based risk assessment tools claim that they remove inequalities from the use of pretrial incarceration because they make decisions based on objective risk factors, and not wealth.  They claim that the decisions are based on data and evidence, and therefore are more accurate and less biased than judges’ subjective assessments.  They claim that the tools will keep dangerous people in custody, while releasing those who are not a threat.  Sometimes they claim that the tools will reduce overall pretrial incarceration rates. 

Critics of profile based risk assessment say that far from being unbiased, the tools incorporate and reinforce the underlying biases of the criminal justice system.  If the tools evaluate data from a racial and economic class biased criminal justice system and overall society, they will reflect and reinforce those biases.  Studies have found the tools to produce racially biased results.

The tools lack transparency, making it difficult or impossible to understand how they make their decisions and whether they are fairly and properly weighing the inputted information, or even if that information is the correct data to evaluate.  Some studies have found them inaccurate.  Others have noted that judges simply override release recommendations and continue to incarcerate at their habitual rates.  A major concern about the use of these tools is their adjustability.  The judges who control them can change the scoring scale or the algorithm’s formula to achieve whatever result they desire

Many proponents of the tools acknowledge problems of racial bias and inaccuracy, but contend that they can be improved over time.  Critics point out that the bias is inherent, as the inputs inevitably factor racially biased criminal history and the output measures risk of re-arrest, which is highly influenced by race and social class.   Additionally, many believe that making a decision to incarcerate someone based on a statistical prediction of what they may do in the future violates fundamental notions of justice. 

Is there an alternative to the current money bail system and to profile based risk assessment that will reduce over-incarceration while keeping communities safe?

The best way to reduce pretrial incarceration is to respect the presumption of innocence and stop jailing people who have not been convicted of a crime absent concrete evidence that they pose a serious and specific threat to others if they are released.  Human Rights Watch recommends strict rules requiring police to issue citations with orders to appear in court to people accused of misdemeanor and low-level, non-violent felonies, instead of arresting and jailing them. 

For people accused of more serious crimes, Human Rights Watch recommends making a release, detain, or bail decision following an adversarial hearing, with rules of evidence, an opportunity for both sides to present evidence of levels of potential risk. There should be a requirement for the prosecutor to show sufficient evidence that the accused actually committed the crime, and high standards for showing specific, known danger if the accused is released, as opposed to relying on a statistical likelihood. 

This system would limit pretrial incarceration to only those shown to be an actual danger.  Prosecutors would not be able to ask for bail for everyone accused to pressure them into guilty pleas. They would have to carefully choose which defendants truly warrant the expenditure of time and resources that would be necessary to secure their pretrial incarceration.  Similarly, judges would not be able to default to locking people up before trial—the incentive would rather be to reserve that option for cases in which it was truly necessary, and to encourage prosecutors to do the same. Because pretrial incarceration would be limited to a far narrower group of people, those believed to be an actual danger or flight risk that could not be mitigated by other means, courts would spend less time and local governments would spend less money addressing and jailing people accused of lower level offenses. 

More significantly, the burden and unfairness of pretrial incarceration, and incarceration in general, would diminish if we stopped using criminal law as a solution to societal problems.  We should stop criminalizing behaviors like drug use and sex work.  We should stop prosecuting homeless people for acts that reflect their status.  We should invest in health treatment for drug abuse, education and community development to reduce gang and other crime, and community based voluntary mental health care for those who need it. 

“Solutions” like profile based risk assessment tools that make the incarceration system more efficient miss the point—the system does not need to be made more efficient. It needs to be forced to respect the rights of the accused, and doing so would in turn force a far more fundamental reconsideration of the range of behaviors that should be prosecuted as crimes in the first place.



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