Why our cash bail system is an abusive relic
by Rory Fleming
Even for the Trump era, it sounds like an extraordinary lapse in political decorum. At a University of Pittsburgh event hosted by the College Republicans on October 30, Allegheny County District Attorney Steve Zappala was taking audience questions. Molly Gonzales, an undergraduate student, asked him about racial disparities in the criminal justice system and other key issues—including ending cash bail.
As some people lingered in the room after the event ended, Sydney Massenberg, a senior at Pitt, told Filter that he heard Mary Zappala, the DA’s wife, call Gonzales a “stupid bitch.”
Reached for comment, Zappala’s campaign manager and son, Stephen J. Zappala, told Filter that he did not hear his mother say that. But Gonzales heard it too, as did Stephanie Gagne, a third undergraduate student, who told Filter that Mary Zappala also gave the group of young women the middle finger.
Why would a question about ending cash bail, among others, spark such an outburst?
The practice, which is used in almost every state court in the country, concerns what happens a few steps after you get arrested. A police officer arrests someone, then books them into jail. Soon enough, that person will be summoned by the local court for a bail hearing. At the end of it, a bail amount—a returnable sum that the defendant must pay in order to be released, intended to guarantee their appearance at a later court date—is often set.
Ask any public defenders, and they will tell you that bail amounts are routinely set at an amount that is too high for many people—especially people living in poverty—to pay.
Jason Lollman, a public defender in Tulsa, Oklahoma, told Filter that prosecutors are perfectly aware of the extra negotiating power bail gives them. “Frequently, bail is deliberately set in an amount that a client can not afford—which, in effect, denies bond,” Lollman said. “Pre-trial incarceration of a person enables prosecutors to apply pressure and force plea negotiations. People plead guilty simply to get out of jail. Prosecutors understand this.”
Lollman estimates that about 60 percent of people charged in his county can’t make bail within a day, and 40 percent can’t make it within a week.
Joel Feinman, the chief public defender of Pima County, Arizona, weighed in, too, stating that “Money bail is a problem in Tucson the same reason it’s a problem around the country: It criminalizes poverty and discriminates against poor people. There’s no reason someone should be held in jail just because they have less money when compared with someone else who is charged with the same crime. It is legalized discrimination against indigent people.”
Feinman estimates that at least 90 percent of his clients who have bond set can’t afford it, which he considers a serious constitutional infirmity. He also explained how local judges in his jurisdiction fail to understand the realities of his clients’ poverty. “There is no difference between setting $1,000 bond and $1,000,000 bond for my clients,” Feinman told Filter.
In one of countless examples of bail being set prohibitively high every single day, CourtWatch NYC, a joint project of VOCAL-NY (Voices Of Community Activists and Leaders) the Brooklyn Community Bail Fund and Five Borough Defenders, tweeted on October 30 about how deputy Queens prosecutor Graham V. Amodeo requested $50,000 bail for a man only charged with “possession of (unidentified) controlled substance.” The judge opted for a somewhat less onerous amounts of $30,000 bond or $15,000 cash bail, giving the defendant two ways to pay for pretrial release.
A bail bond differs from cash bail in that you don’t have to cough up all the cash yourself, but can go to a bail bond service and have them pay the amount on your behalf—typically for a 10 percent fee.
In this case, a 10 percent fee would be $3,000. And if the defendant can’t pay, they will be stuck in jail until the money is paid, a plea deal is struck, or the court otherwise disposes of the case.
Almost anyone would say that even $3,000 is a lot of money. But $15,000? For a full-time worker making minimum wage in New York, the amount signifies almost an entire year’s labor. The average American household has less than $9,000 in savings. And a 2016 report from Prison Policy Initiative shows how people unable to pay bail make about $16,000 on average a year, prior to incarceration. (This amount is reportedly even lower when limited to people of color.)
The cash bail and bail bonds system financially punishes every impacted person before they have been convicted of any crime—but above all, it punishes poverty and the people of color who disproportionately live in poverty.
It can even kill, as the friends and family of Layleen Cubilette-Polanco tragically learned. An Afro-Latina trans woman, she died at Rikers earlier this year after she couldn’t pay $500 bail on misdemeanor assault and harassment charges. She was 27 years old.
No wonder social justice advocates are demanding an end to this system. And no wonder those who find comfort in the race and class disparities it exacerbates are aggressively fighting back.
Jon McFarlane, a community organizer who works with CourtWatch NYC, told Filter about how the money bail system has personally impacted his life. The way he sees it, bail is “instrumental for holding a lot of people back for minor violations of law.” A Queens resident, he was arrested once for a minor criminal charge and was able to pay bail, but he has friends and family who haven’t been so lucky.
VOCAL-NY Community Leader Roger Clark had a different experience. He had to sit in jail in 1991 for over a year because he couldn’t pay $10,000 bail. He told Filter that “people are supposed to be ‘innocent until proven guilty,’ but with the bail system, we are locking up people presumed to be guilty.” Clark recounted the story of a man he knows who pled guilty just so he could get out of jail and smoke a cigarette again without getting in trouble.
Clark also recalled how prosecutors representing the District Attorneys Association of the State of New York (DAASNY) recently tried to turn a government hearing about the optimal rollout of the state’s new, incremental bail reform law into a discussion of whether that law should exist.
Tim Williams from Chicago also experienced the money bail system first-hand. “It was a very huge amount to me. At the time I could not afford bond, so I had to go to the bond firm to pay the bond,” Williams told Filter, referring to the Chicago Community Bond Fund. Even so, he had to wait a whole month before he was released to house arrest, which he described as onerous.
With media beginning to notice the extent of the problem, this pay-to-play part of the criminal justice system is now a mainstream economic justice issue. Presidential hopefuls ranging from Bernie Sanders to Kamala Harris have introduced their own bills in Congress that would purportedly get rid of the cash bail system. States like New Jersey and California have already been instituting their own reforms.
In 2019, We Still Use the Replacement for Wergeld
The inequity of cash bail and bail bonds is so obvious that it begs the question of how on earth we got here in the first place.
Lots of awful American laws come from the colonial era or even earlier civilizations, and our bail system is no different. Bail actually originated about 1,500 years ago, when the ancient Anglo-Saxons in England were transitioning from wergeld—the blood-price to be paid by killers as compensation to the families of their victims.
When the Anglo-Saxons abandoned wergeld for the early court system, they wanted to figure out a way to get people to face potential punishment without fleeing. They settled on surety, or the original understanding of bail.
The founders of the United States understood that bail could be set abusively high. The Eighth Amendment of the US Constitution, adopted in 1791 along with the rest of the Bill of Rights, says that “Excessive bail shall not be required.” “Excessive” has never really been conclusively defined, including by the Supreme Court.
In the contemporary era, but before 1970, American judges could not preventatively detain people due to public safety concerns. But the US has since evolved into a heavily-policed state, fueled by crime alarmism in mass media and the cultural normalization of mass incarceration.
Today, judges frequently use prohibitively high bail amounts as an effective form of discriminatory preventive detention, even for the most trifling of legal violations—like the possession of personal-use quantities of drugs.
The New Clash Over Preventive Detention
Influential organizations across the political spectrum, from the American Civil Liberties Union to the Charles Koch Institute, want to end money bail altogether. But what that looks like in practice is a recent debate over whether preventive detention has any place in American society.
Those on the left, including prison abolitionists, want no such detention at all, and are in the fight to reduce or end incarceration, period. When the Brooklyn Bail Fund closed to prevent its being used as an excuse for politicians to retain money bail, Pilar Weiss of the National Bail Fund Network said, “A bail fund that serves the carceral system is not going to cause it to stop holding people on pretrial detention.”
Generally speaking, anti-bail allies who are politically to the right, as well as law enforcement, want to retain preventative detention for people accused of violent crimes. Cook County (Chicago) State’s Attorney Kim Foxx was elected in 2016 as a reformer, and supports release on bail for some people found with illegal firearms. But she has also said “If you’re dangerous, you should be in jail, you should not be allowed to have a bail.”
The Supreme Court ruled in United States v. Salerno that the federal practice of detaining someone based on potential danger to the community is constitutional, though that decision is from 1987.
One issue on which the two coalitions clash is the proposal by legislatures, law enforcement and centrist philanthropy organizations to replace the money bail system with risk assessment tools—software that uses algorithms to supposedly determine the likelihood of a person committing a crime while awaiting trial.
The left coalition, as Filter has reported, is deeply concerned that these tools will reinforce law enforcement racism by giving risk points for more frequent law enforcement contacts—which will hurt overpoliced people of color. There are claims that risk assessment would create a universe reminiscent of the film Minority Report. There is also evidence worse court outcomes for people who are forced to await trial behind bars.
The vast majority of elected prosecutors—certainly, for example, Pittsburgh DA Steve Zappala, who faces a November 5 reelection contest—skew hard toward incarcerate first, ask questions later. Mindful of their re-election prospects, they often see their role in all this as the person who has to answer to the public if someone accused of a crime is cleared for release, then something goes heinously wrong.
This gravitational pull toward political risk-averseness over human rights is so strong that even people like Harris County (Houston) District Attorney Kim Ogg, who was elected as a “criminal justice reformer” in 2016, have opposed ending the bail system or reducing its harms.
Where Do We Go From Here?
So where do we go from here? There are a few options. Lawyers have had some success hopping from town to town, suing local governments on claims that their bail systems are unconstitutional. Alec Karakatsanis, the executive director of the Civil Rights Corps and a Harvard Law School alum, leads this strategy like a suited-up Robin Hood.
There has also been a list of legislative victories against the bail system—though when risk assessments or eligibility for only the lowest-level crimes make their way into bills, many reform advocates see these as Faustian bargains at best.
For reformers concerned exclusively with drug policy, the stakes of compromise may not feel so high. With the exception of someone facing a high-quantity drug transportation or drug-induced homicide charge, it is hard to imagine a risk assessment tool designed to prevent violence barring someone with drug charges from release.
That said, if such tools are poorly calibrated, they could especially ensnare drug users of color, without any record of violence, based on prior law enforcement contacts alone. And the punitive, often arbitrary distinction between violent and non-violent offenses is itself highly questionable.
Many advocates would press that liberation is not just something to win for one group of people, such as people who use drugs, with others thrown under the bus for the sake of expediency.
That is the philosophy encapsulated by criminal justice reform luminary, Dorsey Nunn, in the naming of his organization, All of Us or None. Nunn, who has successfully fought for “Ban the Box” laws, has described how dividing former prisoners into “violent” and “nonviolent” categories translates into “dividing current and former prisoners between the deserving and undeserving”—thus foreclosing positive contributions for many who want to repair harms and help their communities.
For people who are interested in fighting the current bail system, great ways to get involved include volunteering for a bail fund.
The best way to explain bail funds is that they are nonprofit bail bond services for good. They pay people’s bail as a form of good will, charging no fee. When people who have been bailed out show up to court and return the money to the fund, that money is then used to bail additional people out, ad infinitum.
When honestly and fully implemented, such policies bypass slow-moving and compromise-riddent legislatures to make an immediate, positive difference to marginalized people’s lives—as we’ve seen in Philadelphia, where there has been a 22 percent decrease in pretrial jail stays under reforming District Attorney Larry Krasner.
Anyone who hates the economic and racial disparities in the criminal justice system should be making this issue a personal priority.