No Money, No Problem: New Bill Aims to End Cash Bail System

Lawmakers want to end the two-tiered system of justice for those who can and can't afford to bail themselves out.

(Photo: James Benet/Getty Images)

Feb 24, 2016· 2 MIN READ
Rebecca McCray is a staff writer covering social justice. She is based in New York.

As a bipartisan criminal sentencing reform effort awaits action from Congress, lawmakers added to their list of considerations on Wednesday. Hoping to shift states away from the long-standing and widespread practice of demanding money bail in exchange for the freedom of someone charged with a crime but not convicted, California Democrat Ted Lieu introduced the No More Money Bail Act of 2016. It would bar states that use money bail from access to desirable Department of Justice grants to law enforcement, and eliminate the practice in the federal criminal justice system.

"We cannot both be a nation that believes in freedom and equal justice under the law, yet at the same time, locks up thousands of people solely because they cannot afford bail," said Lieu, sponsor of the bail-reform bill, in a statement. "We cannot both be a nation that believes in the principle of innocent until proven guilty, yet incarcerate over 450,000 Americans who have not been convicted of a crime." Lieu's bill has three cosponsors.

When a person is charged with a crime, a judge typically sets a bond at a particular dollar figure to ensure the individual returns to court. If a defendant can afford to pay the full amount, it will be returned when he or she shows up in court; the money is forfeited if the defendant does not show. But nearly half of felony defendants can’t afford to pay, according to the Pretrial Justice Institute, a D.C.-based pretrial reform organization.

As a result, roughly 60 percent of the population of local jails across the country comprises people waiting for their case to be heard, according to the National Conference of State Legislatures. That process can take years.

“Mass incarceration is really happening at the jail level,” said Cherise Fanno Burdeen, executive director of the Pretrial Justice Institute. “This bill is another way in which carrots and sticks can be used with states to encourage them to comply with the law.”

The devastating impact of the cash bail system was brought into sharp relief by the suicide of Kalief Browder in June 2015. At 16, Browder was arrested in New York City and accused of stealing a backpack—a charge he denied. He was sent to the infamously brutal jail at Rikers Island. Browder awaited trial for three years in large part because his family couldn’t afford to pay his bail, which was set at $3,000. Nearly two years of his time at Rikers were spent in solitary confinement, and Browder carried the psychological toll of isolation with him until he took his life after his release.

Browder’s story illustrates the darkest outcome of a system that delivers two tiers of justice, one to the haves and the other to the have-nots. Browder spent three years behind bars for allegedly stealing a backpack, whereas Chicago police officer Jason Van Dyke, captured on camera shooting 17-year-old Laquan McDonald 16 times, walked free after a family member posted a $150,000 bond.

“It’s not just about poor people who get stuck in jail who are low-risk. It’s also about dangerous people who can buy their way out,” Burdeen told TakePart.

Nearly half of high-risk defendants, including those who have committed violent offenses, are released until trial after posting bail, according to research conducted by the Laura and John Arnold Foundation.

While the bill does not mandate specific alternatives to a cash bail system, alternatives do exist: Credit card bail is one option, as is pretrial supervision, in which a GPS anklet is placed on a defendant, who is released until trial.

Burdeen and her organization, which supports Lieu’s bill, advocate for more thorough risk assessments of defendants so that judges are able to better decide when it’s appropriate to detain individuals until their next court visit. At the state level, such pretrial service programs are rare.