Incarcerated Until Proven Wealthy

Image: Texas Organizing Project

Image: Texas Organizing Project

Editor’s Note: This article was written by past Defiant writer Iman Dancy.

“The defendant will be released on bail.” “Man detained on $20,000 bail.” “The accused has been granted bail.” Statements like these constantly infiltrate our collective consciousness, saturating evening news broadcasts and journalistic publications nationwide. Cash bail has long been an active force in the United States justice system. As a result, many Americans have grown blasé about the subject, conditioning themselves to switch off the moment the word comes into conversation— but the supposed banality of bail has proven to have devastating consequences. Continually illustrating the issue as ordinary has allowed the cash bail system to function in an increasingly pernicious and discriminatory fashion, all the while shielded from the public scrutinization that it deserves. 

Bail is the amount that must be paid in order for a defendant to be exempted from pretrial incarceration. The cash bail system was instituted with the intention of guaranteeing that, post-arrest, defendants would attend all subsequent court proceedings, with the payment of bail acting as a financial incentive to do so. However, the system long ago deviated from that initial vision, instead morphing into a multibillion-dollar, for-profit industry that criminalizes poverty, disproportionately impacts people of color, and augments the wealth of corporate puppeteers and their bail bondsmen marionettes. Individuals that can afford to directly post bail are free from pretrial detention, while poorer defendants are forced to turn to private bail bond companies—an option that brings with it a seemingly endless cycle of debt and dependency— or serve time in jail despite not yet having a conviction. 70% of jailed Americans have not been convicted of a crime. This means that there are hundreds of thousands of people spending weeks, months, and even years in jailhouses— separated from their families and unable to work— despite still being considered innocent in the eyes of the law. 

Our nation has long taken pride in the “innocent until proven guilty” doctrine, but the money bail system is the direct antithesis of that supposedly fundamental notion. It funnels those already most susceptible to the harms of society into an exploitative system that strips individuals of their freedom simply because their income levels don’t make the cut. The ACLU Campaign for Smart Justice reports that the national average bail amount for felony arrests is now $10,000, despite the Federal Reserve calculating that nearly half of Americans would be incapable of paying an unanticipated expense of $400 or higher. Statistics like this make obvious the desperation that many defendants face upon arrest and why the private bail bond industry continues to thrive to this day. 

To add fuel to the fire, the cash bail system has been identified as a major perpetuator of institutional racism. More than 50% of pretrial detainees are black or Latinx, and studies indicate that, on average, black men receive bail amounts 35% higher than their white counterparts of the same crime and criminal history. Proponents of cash bail often argue that it protects communities by keeping dangerous criminals contained within correctional facilities and away from the general public. In actuality, money bail does nothing of the sort; rather than making pretrial incarceration dependent upon the severity of one’s alleged crime or criminal history, money bail instead says that, so long as an individual can financially satisfy their assigned bail amount, the risk they may pose to their community is of minimal importance. It is a plutocratic ploy operating under the veil of law and justice.

There is hope, though, as a number of more equitable alternatives to cash bail already exist— ones that truly prioritize justice over profit and work towards a more egalitarian future for all. California recently became the first state to completely abolish money bail. The state will institute a risk-assessment system for non-misdemeanor cases in October of 2019; pretrial incarceration will be determined by an algorithm that factors in the severity of the alleged crime, along with the likelihood of future court appearance and recidivism. Washington D.C. has operated under a cash bail-free system for more than two decades, and other jurisdictions nationwide have followed suit. This is the direction in which our entire nation should be moving. 

We have long upheld an institution that systematically maltreats and disenfranchises our most vulnerable, and though we cannot erase this ugly history, we can choose not to continue repeating our past mistakes.