When defendants can’t post bail, everyone pays the price.
At any given time, roughly 480,000 people sit in America’s local jails awaiting their day in court, according to an estimate by the London-based International Centre for Prison Studies. These are people who have been charged with a crime but not convicted. They remain innocent in the eyes of the law.
Some are violent criminals who need to await their trials behind bars in the interest of public safety— murderers, rapists and the like. But most (three quarters of them, according to the National Conference of State Legislatures) are nonviolent offenders, arrested for traffic violations or property crimes or drug possession. And many of them will be found not guilty. A 2013 Bureau of Justice Statistics report found that one-third of felony defendants in the nation’s largest counties were not ultimately convicted of any crime.
The same report found that defendants who were detained before trial waited a median of 68 days in jail. Often, that is simply because they can’t afford to post bail. A 2013 analysis by the Drug Policy Alliance found that was the case for nearly 40 percent of New Jersey’s jail population.
The idea of bail makes a lot of intuitive sense: When someone is charged with a crime, you make them put down a deposit to ensure they show up for trial. If they don’t put the money down, they have to wait in jail. But in practice this means that plenty of people sit behind bars not because they are dangerous or because they are a flight risk, but simply because they can’t come up with the cash.
For low-income people, the consequences of a pre-trial detention, even a brief one, can be disastrous. Miss too much work and you’re out of a job. Fall behind on your rent and you’re out of a home, too. Plus, in many cases, these people will eventually be found not guilty.
For reasons like this, some civil rights reformers advocate abolishing bail. Maya Schenwar, editor in chief of the independent news site Truthout, says bail policies are tantamount to “locking people up for being poor.” HBO’s John Oliver recently noted that while a poor person might not be able to post a $1,000 bail for a minor infraction, a wealthy murder suspect like Robert Durst can post a $250,000 bail and walk free.
Eliminating bail is not as radical as it sounds. The District effectively stopped using bail in the late 1960s. Instead, the city’s Pretrial Services Agency determines the best option for dealing with defendants before they go to court. According to the agency, 12 to 15 percent of defendants are held before trial for various reasons, including flight risk or danger to others. Others are released. The overwhelming majority of released defendants, 88 percent of them, make all scheduled court appearances and remain arrest-free while awaiting trial.
If you’re not convinced by the civil rights argument, consider the economic one: We spend about $17 billion dollars annually to keep innocent people locked up as they await trial.
Here’s how I arrived at that number. U.S. taxpayers spent $26 billion on county and municipal jails in 2012, the most recent year for which the Bureau of Justice Statistics has data. And 64 percent of those in jail are awaiting trial, thus the estimate that we’re spending about $17 billion each year on pre-trial detentions.
That’s just a back-of-the-envelope estimate, but it gives us a sense. For comparison, that amount is a little less than NASA’s annual budget.