The money bail system stacks the deck against those who can least afford to get out of jail and who have the most to lose from being locked up for months and sometimes years before going to trial, reform advocates say.
While wealthy defendants can bail out within hours of their arrest and get the money back when they show up for court, poor and mostly minority defendants who can’t afford bail have few options.
One is paying a bail bondsman up to 10 percent of the bail amount (15 percent in North Carolina) — money they can never recover, even if they show up for court. Or they can take a plea bargain that gets them out of jail but creates other problems when they apply for college, loans, jobs, or to vote.
Many innocent people end up taking that option because staying in jail can strain families, leave bills unpaid, and cost them their job or home, advocates said.
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Excessive bail can compound the traumatic experience of being locked up, said Tommy Green, an Orange County community health worker who ended up on the wrong road after he was swept up in a friend’s armed robbery at 18. While those charges were dismissed, Green later served 10 years on his own armed robbery and kidnapping charges.
It’s always cold in jail, you’re in the same room for up to 23 hours a day, and your free time isn’t really freedom, he said. Sometimes, you miss so much that you no longer see a reason to do the right things.
“It’s really hard to explain the thoughts and the feelings that you have once everything is taken away from you,” Green said. “You have to experience it yourself to truly understand the heartbreak, the pain, the stress, not knowing how you’re going to get yourself out of the situation.”
Deprived of liberty
Roughly 63 percent of the 700,000 people in local jails haven’t been convicted of a crime, and it costs over $9 billion a year to keep them there, according to “The Bail Trap,” a recent film about the nation’s money bail system. A film screening and panel discussion was hosted Monday by the Chapel Hill-Carrboro NAACP, Northern Orange NAACP and the Chapel Hill Justice in Action Committee.
Those who can’t make bail are 13 percent more likely to be convicted, the film noted, and serve five months more than defendants on pretrial release. Meanwhile, the bail industry, which is largely backed by insurance companies, generates $1.4 billion a year, it stated.
It’s time to address the problem, said James Williams, Orange County’s former chief public defender. He noted the recent 150th anniversary of the 14th Amendment, which prohibits in part the denial of life, liberty and property without the due process of law.
“I can think of no single area where that provision is more compromised and violated than a system of injustice which decides whether or not a person accused of a crime prior to arrest can be deprived and are deprived of their liberty based upon their lack of wealth,” Williams said. “It happens every day in this country, in this state, in this district, in this county.”
That’s not the way the system is supposed to work, he and others said.
North Carolina’s pretrial release law is supposed to let defendants out of jail on a written promise to appear in court, said Wade Barber, a former Orange-Chatham Senior Resident Superior Court judge. They also can get an unsecured bond, which requires them to pay only if they don’t show for court, or released to the custody of a responsible person or program, he said.
Secured bonds, for those who pose a flight risk or threat to public safety, require defendants to pay the money or put up collateral.
Who is to blame?
Orange County mandates multiple bond reviews, from the magistrate’s preliminary hearing to 48-hour and seven-day reviews before a judge, Barber said. Orange and Durham counties also have pretrial release programs that supervise low-risk defendants, allowing them to continue working, remain with family in stable housing and access needed services while they await trial.
Even so, there is room for improvement, the panelists said.
“I think the conversation needs to fundamentally change” to address the harm caused to someone left sitting in jail, said Mani Dexter, a staff attorney with Prisoner Legal Services. She noted that defendants in jail over three days are more likely to miss court dates when they do get out and more likely to get new charges before and after their case is resolved.
”One of the reasons that people have been staying in jail and ridiculous bonds are being set is because judges are afraid to let people out and they are afraid of what harm might result if they let somebody out,” Dexter said.
Don Mescia, executive director of United Bail of America, countered that bail usually is reserved for those who show repeatedly that they can’t be trusted to show up for court or stay clear of the law if released. They should be held accountable, rather than blaming the bail industry, he said.
One option is ensuring that no one sits in jail for more time than he or she would receive if convicted of the alleged crime, Mescia said, noting that would take a bigger public investment in prosecutors and public defenders.
“It really blows our mind as a bail industry,” he said. “We understand that there should be criminal justice reform — more programs, lesser sentences, re-entry programs allowing folks to find jobs, deleting out maybe a felony conviction, restoring voting rights after a certain amount of time for people with non-violent offenses … but as far as the bail structure, [bondsmen] are usually the last [resort].”
Change is happening
News reports show bail reform programs still have some kinks. In Baltimore and St. Louis, for instance, Mescia said more people are behind bars because bail reform has let mathematical algorithms decide their risk level instead of a judge.
A Baltimore Sun report notes that Baltimore’s pretrial incarceration rate also grew because more defendants deemed a high risk — from about 7.5 percent to roughly 20 percent since last year — were held without bail.
In St. Louis County, reforms have increased the number of defendants in pretrial release programs, but cash bail still has its supporters, according to a Marshall Project report. The county is trying to cut pretrial incarceration by 15 percent to 19 percent in two years.
The Marshall Project recently reported that of 325 people enrolled in St. Louis County’s pretrial release program, roughly 25 percent did not complete it, largely because they did not show up for court, and less than 5 percent committed new crimes.
In New Orleans, a pilot project found that people released using an algorithm showed up for court at about the same rate as those released by a judge. The arrest rate for the algorithm-released defendants was 4.5 percent, compared with 2.9 percent for defendants released by a judge, the report showed, and the average jail stay fell to two days for low-risk defendants.
New Jersey is a success story, with fewer defendants in pretrial lockup since implementing risk algorithms. The Pretrial Justice Institute noted that 94 percent of New Jersey’s defendants were released from jail since 2017, and the jail population was cut 20 percent.
Orange County’s Board of Commissioners joined the institute’s 3DaysCount bail reform effort in April, Commissioner Renee Price said. The county also has followed many institute recommendations, including bringing the pretrial release program into the criminal justice resource department, using an evidence-based pretrial risk assessment tool, ensuring defense attorneys are in court for first appearances, diverting more people to pretrial arrest programs instead of jail, and providing mental health professionals.
“The goal is to help states reduce the unnecessary risk by expanding the use of citations and summons, to replace money bail with non-financial, less restrictive conditions, restrict detention to the small number of people who may be at risk, and to reduce the disparity in the pretrial justice system,” she said.
The movement also is gathering national steam with the introduction this week of Vermont Sen. Bernie Sanders’ No Money Bail Act. The bill seeks to end cash bail in the federal justice system and help local and state governments with options to pretrial detention.
If you missed it
Another screening of “The Bail Trap: An American Ransom” will be held from 6 to 9 p.m. Friday, Aug. 3, at Immaculate Conception Catholic Church, 810 W. Chapel Hill St. in Durham. The event will include food trucks, an expert panel and a Q&A discussion.