The United States has the highest incarceration rate in the world, imprisoning 2.24 million out of the world's total of 10.2 million incarcerated people as of 2013, according to the International Center for Prison Studies. The ICPS also reports that, in 2013, 480,000 people were held in U.S. jails before even being tried for their charges. The system of cash bail targets poor people who can’t afford their bail, and several major insurance companies make billions in profits from the cash bail system.
Critics of the cash bail system point to research demonstrating that cash bail discriminates against the poor, and especially poor people of color. According to a 2015 report from the Vera Institute of Justice, two in five people held in America's jails are behind bars because they cannot afford their bail. The report also notes that 75 percent of people in jail are accused of non-violent crimes, such as shoplifting or minor traffic offenses. There's also evidence of profound racial bias within the cash bail system. The Vera Institute reports that black Americans are jailed at almost four times the rate of their white counterparts.
While the statistics for cash bail are staggering, the cruelest injustices of this system become clear in the context of real people’s lives.
"A Vicious Cycle" of Discrimination
Lavette Mayes, a mother and entrepreneur in Chicago, spent more than a year in Cook County Jail because she was unable to pay $25,000 of a $250,000 bond. Mayes was arrested in 2015 for a "domestic dispute" and had no prior criminal record; writing for Truthout earlier this year, Mays said: "When you incarcerate a mom, you incarcerate the whole family," explaining that her time in jail brought significant financial and psychological burdens for her and her children. "My kids were constantly on edge," Mayes wrote. "They'd have anxiety when they were at school because they were afraid to be away from me. It would tear me apart."
Mariame Kaba, founder of Project NIA, a Chicago non-profit organization that works to reduce youth incarceration, and an advisory board member at the Chicago Community Bond Fund, explains that the harms of the cash bail system are often far-reaching for those who can't afford to pay. "Parents are at risk of losing their children" if they are incarcerated, Kaba says, "and it can be hard to keep a job while in jail, and also to get a new job once released," thus perpetuating a "vicious cycle" of class discrimination that makes it impossible to afford bail in the first place. Further, people who are incarcerated pre-trial are more likely to be convicted, and more likely to be sentenced to prison time if found guilty, according to a 2017 Princeton University report on pre-trial detention.
Turning a Profit on Bail
While people who have not yet been convicted of crimes sit in jail because they can't come up with the money, bail bond agents collect fees for posting bail, and private insurance companies amass huge profits.
A May of 2017 report from the American Civil Liberties Union and the Color of Change, a civil rights advocacy non-profit, revealed that, beyond storefront bail bond agencies, which charge a fee to post bail, nine large insurance companies make billions in profits by insuring bail. The legal right to turn a profit on bail is a rare phenomenon globally: It's only legal in the U.S. and the Philippines. But bail insurance differs from the insurance one can purchase for a car or home: Here, bail is covered through a "surety bond," which guarantees the agreement between a bail agent and the state. Further, unlike insurance for a car, the insurance company guaranteeing a bond will rarely have to pay anything out, doing so only in the case that a bail agency goes out of business, according to a Mother Jones report.
Udi Ofer, director of the ACLU's Campaign for Smart Justice and a lead contributor to the ACLU's May report, tells Pacific Standard that the "big bail industry" has built a legislative security net for itself by "cultivating relationships with ALEC [the American Legislative Council]," which helps the insurance companies "pass laws in state legislatures throughout the nation." The ALEC is the same deep-pocketed group of corporations and conservative lawmakers that drafts model legislation at the state-level, including laws that promote for-profit prisons.
All of this adds up to virtually no risk for the surety companies, but huge opportunities for profits. According to the report, these nine companies, which include the Japan-based Tokio Marine America and Fairfax Financial Holdings Limited, which is based in Canada, make approximately $2 billion a year in profits by underwriting an estimated $14 billion in for-profit bonds.
The Movement for Black Lives
The injustices of the cash bail bail system have made it the target of prison reformers and abolitionists for decades, but the movement to end cash bail has garnered fresh attention thanks to the Movement for Black Lives. In the summer of 2016, the Movement for Black Lives published its policy platform, including a demand to "end the war on Black people," which would involve "an end to money bail, mandatory fines, fees, court surcharges, and 'defendant-funded' court proceedings." Around the country, advocates for bail reform and abolition have been working both to mitigate the immediate harms of the cash bail system, and to push for better policies.
In Chicago, there's a sense of urgency among advocates to reform cash bail. Sharlyn Grace, an attorney and co-founder of the Chicago Community Bond Fund, tells Pacific Standard that "the scope of this problem in Chicago is tremendous," referring to the massive number of people held in Cook County Jail, the largest single-site jail in the country. Cook County Jail holds approximately 100,000 people each year, most of whom are in jail pre-trial and unable to pay bond, which averages $72,000 in Chicago.
Since its founding in 2015, the Chicago Community Bond Fund has used a revolving fund to pay bail for people who can't afford it, and who would otherwise sit in jail for days or weeks. The Fund also advocates for an end to cash bail, provides support (such as reminders for court dates) to people when they're released from jail, and works on policies that target pre-trial detention.
As the CCBF works to get people out of jail as soon as possible by paying their bail, major legislation pertaining to cash bail has recently been introduced in Illinois.
Early this year, the Illinois House of Representatives began considering the Equal Justice for All Act, which would abolish money bail altogether except in extreme circumstances. The Act would also require the courts to provide support services such as reminder calls for court dates, and transportation to court dates for low-income defendants. It would further require courts to release non-violent defendants on their own recognizance pre-trial.
There's also a pronounced cash bail problem in New York City, where approximately 50 percent of people who are assigned bail cannot afford it, according to the Decarceration Project, a program run by the Legal Aid Society. Joshua Norkin, project director for the Decarceration Project, tells Pacific Standard that, while the organization embraces the move to end cash bail altogether, their work right now is more focused on getting people out of jail as quickly as possible when they can't afford bail.
Working with Legal Aid attorneys, the Decarceration Project connects clients with bail funds if they're unable to afford the cost of their bail, and also crafts legal arguments to either reduce bail, or else have clients released without paying any bail at all. During an eight-month pilot program in 2017, in which the Decarceration Project assigned a social worker, a paralegal, and an additional attorney to a group of 30 Legal Aid lawyers, Norkin says they were able to to help release 64 of 140 clients after a judge had assigned bail.
The ACLU is currently working through legislative, litigative, and public-education channels to reform cash bail in 33 states. Bail reform is likewise a top priority for the Campaign for Smart Justice. Ofer says that the Campaign will "double down" in 2018 on its existing goal of reducing the country's jail and prison population by 50 percent. The Campaign also has plans to "more aggressively expose and highlight the role that big corporations play in maintaining the status quo and in profiting off this unjust bail system," Ofer says.
Though cash bail is supposedly intended to ensure defendants show up to court, the reality is a scheme in which innocent people spend days or weeks in jail because they cannot afford the cost of their freedom. Using the various tools at their disposal, organizers and activists around the country are standing up to one of many unjust and racially biased practices enabled by the U.S. criminal justice system.