Four Ways Cities Can Make Jails Fairer to the Poor—and Save Money

There are reforms worth trying if America’s cities want to hit the double bottom-line that makes sense—with some liberty and more financial justice for all.
Cash bail is often out of reach for poor Americans who wind up in jail. (Photo: Ann Hermes/Getty Images)
May 13, 2015· 2 MIN READ
Rebecca McCray is a staff writer covering social justice. She is based in New York.

When Miguel Padilla landed in jail for driving with a suspended license, his fiancée scrambled to raise $1,000 in bail to get him out of New York City’s Rikers Island. They couldn’t come up with the cash. So the 35-year-old decided to plead guilty, rather than fight his case, to get back to his three kids as fast as possible. In the five days Padilla spent behind bars, he lost both of his low-wage jobs. After his release, he struggled to find another job—thanks to his new criminal record.

Padilla and others across the country are often moved to plead guilty mainly because they can’t afford bail and are desperate to get back to their lives. “When you’re in jail on bail, you’re far more likely to plead guilty—and to worse sentences—whether you’re innocent or not,” Scott Hechinger, a public defender in Brooklyn, New York, told TakePart. Nearly 90 percent of Hechinger’s clients who are charged with misdemeanors can’t afford bail that’s been set at $1,000 or less.

Locking people up because they’re broke doesn’t just take a toll on their lives. Taxpayers’ wallets are hit hard too: In New York City, where Padilla was incarcerated, for example, one study found the city spent almost $170,000 per year for every jail inmate. So keeping people out of jail—even for just a few days—can save cities big bucks. “If you care about fiscal responsibility, bail just doesn’t makes sense,” said Hechinger, an attorney at Brooklyn Defender Services, which represents nearly half of all people arrested in Brooklyn.

The crisis of cash bail afflicts the poor—particularly people of color—in jails across the country. Maya Schenwar raised the issue in a provocative opinion piece in The New York Times last weekend, noting that most people in local jails haven’t been convicted of a crime. In many cases, they’re behind bars awaiting trial because they can’t afford bail. Spending any time incarcerated, even a matter of days, often has major consequences, as it did for Padilla. Lost jobs, lost custody of children, and the creation of a criminal record are just a few of the risks. Schenwar argues that the system of cash bail should be abolished entirely, pointing to Washington, D.C.’s success with arrestees returning to court in spite of the District rarely using monetary bail.

Here are four key ideas on how to fix—or abolish—the cash bail system.

1. Implement a credit-card bail system.

Credit-card bail could help even the playing field for poor defendants. As with cash bail, the money would be returned when the defendant showed up in court. Or, a defendant could sign a document promising to show up in court and pay nothing unless he or she fails to show. While bail is supposed to guarantee a defendant’s return to court, Hechinger said that’s not an issue for many of his poor clients. “Most of my clients don’t even have cell phones, but they come back to court,” Hechinger told TakePart. If a defendant can’t afford $500 in bail, the flight risk is likely minimal—and for violent offenders, bail is not usually even an option.

2. Allow pretrial supervision.

Pretrial supervision is an option, but it has risks. In place of bail, defendants may be asked to wear a GPS anklet until their trial—mainly to guarantee they show up in court. Other supervision options include periodic check-ins with organizations outside the court, drug testing, or regular phone calls. While there are upsides to these options, criminal justice reform advocates also see drawbacks. A GPS monitor on a person who hasn’t yet been found guilty, for example, may be a violation of the constitutional right to privacy. Drug testing is seen as similarly invasive.

3. Create bail funds for poor defendants.

Public defenders in New York City have created the Bronx Freedom Fund and the Brooklyn Community Bail Fund. In short, these funds raise money to pay defendants’ bail, keep them out of jail, and hopefully prevent them from unnecessarily pleading guilty. This also may give public defenders more time to build a case in their client’s favor. This is a short-term solution.

4. Say good-bye to bail guidelines for judges.

These guidelines, called bail schedules, are cheat sheets that guide judges on how to set bail based on a defendant’s offense. Experts say these schedules fail to take into account or analyze individuals’ risk of flight, their background, and their strengths or weaknesses. Experts recommend the schedules be replaced with individual pretrial risk assessments. These assessments sometimes skew in favor of or against a person’s race or gender, so they are also imperfect.