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Families Torn Apart: America’s Unjust Bail Practices

This article is part 7 of 8 in the column Children of the State

Imagine the following scenario: John, a single father of two, has been arrested. He is charged with theft and his bail is set at $2,000. Because John cannot meet this requirement, he is held in jail until his trial. His sons cannot remain on their own, and John has no immediate family who can care for them, so they are placed in foster care, in separate homes. After six weeks, John goes to trial and is found not guilty and released from jail.

John and his family’s lives have been drastically impacted by this experience. Because John was unable to work, he was fired from his job. He missed two rent payments and was evicted from his apartment. John’s first priority was to regain custody of his children. But because of his lengthy pretrial detention, he is now homeless and unemployed and has no hope of getting his sons back any time soon.

For too many Americans, this scenario is reality. As of May 2014, there were 480,000 pretrial prisoners in the United States. Of the total prison population in 2012, 27.9 percent were pretrial detainees. They experienced an average wait time of three to four months, and the annual cost was $9 billion. America’s prisons and jails currently hold 2.2 million people, which is a 500% increase over the last forty years. Bail bonds of $5,000 to $10,000 are frequently imposed on individuals who have committed petty crimes and misdemeanors yet pose virtually no risk of pretrial flight. In cities across America, this system has disproportionately impacted those who are very poor. As the earlier anecdote illustrated, these practices negatively impact not just the accused person, but also their family and dependents.

Several major cities are taking steps to address this enormous problem.

Here are three examples:

  • New York City recently implemented a program that would allow people who could not afford their bail payments to return home. They are allowed to return to their normal lives, but are required to check in frequently via telephone and have intermittent face-to-face supervision.
  • While not specific to pretrial detention, San Diego has incorporated court-ordered community service into its sentencing practices. Programs such as these often involve cleaning public spaces, providing a much-needed service to the community while helping prisoners reduce their sentence times. In 2013, San Diego County had an average of 5,400 adult inmates per day. From 2013 to 2014, the Work Projects program ran 3,705 crews and provided 41,342 man-days of labor. The program is designed to pay for itself: enrollment fees are paid by program participants. The revenue produced when private groups contract with the prison system and the money saved by the prisons through the reduction in participants’ sentences should cover the cost of maintaining the program. This general model could also be applied to pretrial detainees, giving them a means to work off the equivalent of the bail money they cannot afford.
  • Washington, D.C., is in the early stages of implementing a program that does away with monetary bail entirely. The new plan is to use a risk assessment algorithm to determine a defendant’s flight risk and then decide on pretrial release or detention based solely on that.

The United States judicial system operates on the premise that a person is innocent until proven guilty. The Eighth Amendment of the Constitution of the United States of America states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” However our current bail system violates both of those premises. We disadvantage and incarcerate those who cannot afford bail even though they have not been proven guilty and may be completely innocent. It is time for each city and state to take a close look at their pretrial practices and, drawing from programs that are already being implemented or tested, work to amend obvious and unjust shortcomings.

Emily Rose DeMarco

edemarcoEmily Rose DeMarco is a Masters of Public Administration candidate at the University of Pennsylvania’s Fels Institute of Government. She is also a registered nurse currently working in emergency medicine.




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