Jailed until proven guilty
Inability to pay bail can mean weeks in jail awaiting trial
In America, innocent until proven guilty does not mean free-from-jail until proven guilty. This especially is true for the poor, thanks to the prevailing cash bail system. In this system, arrestees must temporarily give the court money or be jailed until their trial.
Bail price frequently is set with little attention to the individual’s ability to pay or whether anything in the individual’s background suggests a financial incentive is needed to ensure they appear for their court date. Even a $50 bail may be unattainable to someone homeless, unemployed or with little income to spare.
The result: hundreds of thousands across the nation are routinely subjected to weeks or months of pre-trail incarceration, solely because of financial status. The litmus test of whether the accused are allowed to go home or spend nights in cells, away from their family and jobs, is the size of their bank account — if they have one.
No one disputes the illegality of this practice, says Alec Karakatsanis, a lawyer and Harvard Law School graduate (2008) who brings suits against what he calls “modern-day debtors’ prisons.” Karakatsanis co-founded Equal Justice Under Law, an organization that brings cases throughout the nation to promote reform of systemic inequalities. Its suits prompted cities in Alabama, Missouri, Mississippi and Louisiana to eliminate secured money bail for first-time arrestees. Karakatsanis spoke at HLS last week on two panels about his work combating mass incarceration and entrenched injustices in the criminal system. The panels were part of a “Lawyering for Social Justice” discussion series sponsored by several HLS organizations.
The challenge, Karakatsanis told the Banner, is that the public has normalized the idea that humans will be put in cages and abused in the criminal justice system, and so is no longer shocked to action.
“Lack of basic human rights has become a feature of the system,” said Karakatsanis. “Bail may be one of the most critical examples of how something so blatantly illegal can become everyday routine in the system.”
The results are deeply disruptive.
Shattering lives, guilty or innocent
Pretrial jailing — which takes place before the guilt or innocence of the accused is established — effectively brings a web of punishments upon those unable to secure freedom through paying bail.
“It wrecks their lives,” said Hope Haff, a steering committee member of the Massachusetts Bail Fund. MBF posts small bail fees for those unable to pay but likely to return to court.
Those held behind bars face social, financial and opportunity losses as they are removed from their families, schools and jobs for prolonged periods. Many, Haff said, may miss rent payments, fall behind on classes or be unable to secure someone to look after their children or provide financial support to their family in their absence.
Such incarceration may last for 14 weeks or more: in Middlesex County the average amount of time pretrial detainees were held was 118.64 days in 2014, according to a report issued by the National Institute of Corrections. In Massachusetts Correctional Institution at Framingham detainees averaged 100 days in the awaiting trial unit between 2012-2014, according to a report by the Massachusetts Women’s Justice Network.
Pretrial confinement also subjects the accused to the well-known abuses of American jails.
“The mass caging of human beings — particularly people of color — in general, and pretrial detention in particular, is an enormous scandal, especially thinking of the trauma we’re inflicting on these people in the jails: rape, physical abuse, lack of medical care,” said Karakatsanis.
Punishment that promotes crime
Cash bail can promote a cycle of instability and cost society in finance and safety.
“Keeping someone in jail for even a few days after arrest increases their likelihood to commit crimes in the future because it destabilizes them: they may lose housing, their job,” said Karakatsanis. “They’re taken away from school and family. It loosens connections.”
The practice also can put youths on the path to crime by jailing them with genuine criminals, who might exert a bad influence and encourage the youth to do deals for them on the outside, said Haff.
“The Department of Justice says it [cash bail] is not only unconstitutional, but terrible policy,” said Karakatsanis. “It’s extremely expensive.”
Jailing one person pretrial costs Massachusetts — and tax payers — $45,000 per year, and for the total detainees, about $200 million per year, according to a press release from Ken Donnelly, state senator.
With such high numbers of pretrial detainees, there also is frequent demand for new facilities to house them.
“The state pays more money to build and staff new jails than we do for higher education,” Haff said.
Jailed early, imprisoned longer
Those held in jail before trial also tend to be incarcerated much longer, if convicted.
On average, people sentenced after being held pretrial receive three times longer jail sentences, reports the Pretrial Justice Institute, a nonprofit that conducts research and promotes safe, fair and effective pretrial practices.
One reason for harsher sentences: those who remain in jail also suffer from limited ability to work on their legal defense while behind bars.
“Individuals who are detained are not able to assist their attorneys in the investigation of the charges against them, resulting in wrongful convictions and longer sentences,” says Justice Under Law’s website.
One incentive for courts to continue cash bail: it is easier to close the case. Individuals held in jail before trial are four times more likely to be sentenced to jail, according to the PJI.
Those jailed pretrial may face pressure to confess — regardless of actual guilt — in order to be released.
“[Bail] is how state coerces guilty pleads. They pressure people to plead guilty so they can get out of jail. [Those held pretrial] are told, ‘If you plea guilty today you can get out. If you can’t, you have to wait weeks in jail for your trial date,’ ” said Karakatsanis.
In some plea bargains, the accused may be offered a suspended sentence, said Haff. This allows them to leave jail now without further punishment, but the conviction goes on their records. In some cases, the judge may attach conditions, such as the sentence will be imposed should the individual be picked up again. Given the disproportionate amount of police scrutiny towards black men and youths, being picked up again can be a likely occurrence. If the accused was innocent, they have secured temporary freedom in exchange for delayed punishment for something they did not do.
“They may let you go now but give you one year extra if you’re picked up later,” said Haff. “But for black and brown youth, you’re picked up often, if you’ve done something or not.”
Many of those facing pressure to confess otherwise might go free: the Massachusetts Bail Fund supplied bail money to 121 clients who could not pay; 46 percent of these cases that closed ended with the charges dismissed.
Those setting bail stand to gain by profiting personally from their role.
In Massachusetts, the bail magistrate takes a non-refundable fee of up to $40 when releasing a defendant from jail – whether on bail or on their written promise to return – according to information posted on the Massachusetts Judicial Branch website. CommonWealth magazine estimates that Massachusetts clerks as a group make $2.5 million a year from such fees.
Bail gone wrong
Bail is intended to provide an incentive for individuals to turn up for their court dates, if the court deems them unlikely to show. If individuals skip their court date, the court keeps the money. Otherwise, the money is returned upon the case’s completion, minus legal fees and the $40 fee.
In theory, bail price is supposed to reflect the individual’s flight risk and financial situation so that it is set just high enough to motivate appearance in court.
However, many with little flight risk are given bails they have no hope of being able to pay.
The decisions behind bail may also reflect bias: a policy brief released by MassINC reports that the median bail assigned to white arrestees in Barnstable county was $5,000, but for blacks, it was $20,000. In Barnstable, blacks made up about 25 percent of arrestees but only 2.4 percent of the county population.
Do we need bail?
More than 60 percent of the inmates in American jails are there awaiting trial, reports the PJI.
A significant amount may be there simply due to finances: on October 31, 2014, twenty-two percent of Middlesex County’s pretrial inmates who were not in jail on probation or fugitive holds were there for not paying bails of $1,000 or less, reports MassINC.
But bail is not the only option a court has; it is simply the one that has dominated.
In major felony cases where the accused is deemed a serious threat to the community — for instance, facing murder or rape charges— bail set at any level may not be a strong enough guarantee. In these instances, state law permits the accused to be held without bail.
In other cases, Massachusetts allows the bail magistrate to secure a promise from the defendant to appear in court. Where there is no evidence to suggest a high chance of flight risk this can be effective: the Massachusetts Bail Fund reports that of those they sponsored — after risk-assessing — 94 percent appeared for their court dates.
Meanwhile, some places such as Washington, DC have largely moved away from with cash bail.
“No one can defend the legal basis of cash bail,” said Karakastanis. “Hopefully courts in Massachusetts and elsewhere will realize the illegality of poverty jail and go for something more intellectually rigorous.”