Cash bail is still crushing families
Four hundred and forty thousand. According to a report by the ACLU and Color of Change, this is how many individuals are incarcerated on any given day in the United States without being convicted of a crime. That is roughly 70% of all people in jail. Most will spend days if not weeks behind bars in dangerous or degrading conditions before being brought in front of a judge.
Conditioning people’s freedom on their ability to pay creates a two-tiered system. Affluent people also commit crimes, but they don’t languish in jail because they can afford to post bail.
When poorer people are trapped in jail by a bail they cannot afford, however, prosecutors can use the promise of release as a prod to extract guilty pleas. No one wants to be incarcerated. Spending weeks or months away from their lives can cause a person to lose their job, housing or even custody of their kids. Most incarcerated people have only one concern: getting out as quickly as possible. This pressure can lead people to plead guilty to crimes they did not commit. According to UCLA School of Law Bail Practicum almost 95% of criminal convictions across the country stemmed from guilty pleas before the pandemic.
Over the past few years in California, the process of reforming this system has made significant strides. In 2019, Chesa Boudin was elected District Attorney of San Francisco as part of a progressive wave pushing for the elimination of cash bail. George Gascón was elected district attorney of Los Angeles in November 2020 by running on similar progressive reforms. In March of this year, the California Supreme Court ruled that “conditioning freedom solely on whether an arrestee can afford bail is unconstitutional.”
These advances in bail reform are crucial. And yet the financial devastation already caused by cash bail remains in effect. This system has left millions of people without a dollar to their name or with disastrous financial obligations that their families often end up having to shoulder.
Here’s why:
Innocent or guilty, if you are charged with a crime and lack the cash to post bail, you have to borrow if you want to get out of jail before your trial. Private bail bond companies charge 10% of the total bail amount in nonrefundable “premiums,” otherwise known as fees. Even if the defendant has their charges dropped, even if they are found innocent, that fee still has to be paid.
And it isn’t cheap.
The median bail bond in California is $50,000, five times that national average, which translates to a $5,000 premium.
Bail bonds companies have raked in the profits while burying communities in predatory debt. Nationally, $14 billion in bail bonds is issued each year, generating over $2 billion annually for companies. Because the criminal justice system disproportionately charges Black and brown men with crimes, this incurred debt is overwhelmingly held by women of color, who are the co-signers on most bail contracts.
All over the country, millions of families of color are paying for freedom. Predictably, households burdened by bail debt are also struggling with many other kinds of debt, including other forms of carceral debt like probation, restitution, fines and fees, not to mention credit card debt, medical debt, payday loans, and more.
California has made multiple attempts to reform these systems. But there has been pushback. Unsurprisingly, at least to people from communities like mine in South Central Los Angeles, District Attorneys Boudin and Gascón are now facing recall threats. But real justice can’t afford to go backwards. In fact, California and the nation have to go even deeper than a handful of progressive D.A.s can go on their own. We also need to challenge the exploitive financial agreements already in place to win lasting change. And we must address what is too often the root cause of crime — poverty.
In order to do so, communities need to organize.
Understanding the rights that debtors have is a critical part of this process. Debtors in California have a right to dispute debt; a right to stop communications; obligation to respect debtors’ privacy; and rights against unfair collection practices, misrepresentations, unlawful threats , harassment or abuse, and profane/obscene or abusive language. Bail bonds companies routinely break these laws when trying to collect.
In response, the Debt Collective, a union for debtors that I organize with, has created an Abolish Bail online tool that allows co-signers on bail contracts to dispute their debts. After filling out a short questionnaire, the tool automatically generates a demand letter outlining some of the issues with the contract and demands cancellation of the debt. The questions asked and included in the letter are based on California consumer protection law principles, initially applied to the bail bond industry by Danica Rodarmel and the Bail Clinic at Lawyers’ Committee for Civil Rights.
Ideally, bail bond companies will respond to the letter by agreeing to cancel the individual debt. Of course, this won’t always happen. So the Debt Collective aims to build a community of bail debtors — a union — who can come together and leverage their collective power against predatory bail bond companies.
People struggling with bail debt are not in financial trouble because they live beyond their means. They are in debt because they are denied the means to live.
In the words of John Paul Getty, “If you owe the bank $100 that’s your problem. If you owe the bank $100 million, that’s the bank’s problem.” Well, we in California owe roughly $500 million and as a nation we hold significantly more.
So who owes whom?