By Rebecca Wegley, MPP Candidate 2017
Originally published by the Center on Juvenile and Criminal Justice, August 2016
The U.S. Department of Justice recently stated that holding people in jail simply because they cannot afford to post bail violates their Fourteenth Amendment rights under the US Constitution. In an amicus brief, Justice Department attorneys called for judges to consider bail alternatives to ensure that people of indigent status appear for court. Rather than allowing those with funds to walk free, and leaving those without to endure the trauma of jail, California should expand pretrial alternatives to bail, such as risk assessments tools and needs evaluations, which are more humane, less costly, and do a better job of ensuring public safety. In addition to requiring all California counties to establish evidence-based, data-driven pretrial services, lawmakers and voters should advocate for ending the for-profit, money bail system.
The bail bond industry touts the money bail system as superior to pretrial services because they say it is “user-funded with no financial burden on the taxpayer”. This is glaringly misleading because the industry does not acknowledge the fact that taxpayers across the nation pay a high cost for detaining people in jails. The daily cost to detain someone is $155 dollars per person in Alameda County, California, while the daily cost of providing pretrial services or monitoring is a fraction of that cost, less than $10 per person.
Efforts by the courts to level the playing field by making monetary bail more affordable for low income people have created a paradoxical effect: essentially making bonds more expensive. The commercial bail industry often charges additional fees for small bonds on top of the bail fee, driving up the cost, while boosting the bond agencies’ profit.
In fact, the bail bond industry’s lobbying group, the American Bail Coalition (ABC), in association with the American Legislature Exchange Council (ALEC), drafted 12 bills, developed numerous pro-bail policies, and spent millions of dollars lobbying lawmakers over the past decade to pressure judges into setting increasingly high bail amounts. As a result of these efforts, such regressive bail fees have grown dramatically over the past several decades.
The for-profit bail industry has a long and well-known history of aggravating racial and socio-economic disparities, as well as engaging in blatant corruption. The inability to post bail has far-reaching and well-documented negative impacts on individuals and their communities. Other nations consider for-profit bail a perversion of justice and have banned the practice. US lawmakers recently put forth the No Money Bail Act of 2016, which would prohibit the use of money bail in the federal justice system and cut federal funding for states that continue to rely on it, if passed. Several states, including Kentucky (1976), Oregon (1974), New Jersey (2014), and Wisconsin (1981), have enacted significant legislative reforms or constitutional amendments to abolish it at the state level.
Risk assessment, not ability to pay, should dictate whether an individual is jailed or released in California. As such, the state should align its pre-trial release policies with the federal standards by requiring a showing of public safety or flight risk by clear and convincing evidence (the federal standard for pre-trial detention), as well as allowing for an appeals process. A constitutional amendment that ensures the right to pretrial services and release consideration (rather than bail), could ensure that those accused of crimes in California are guaranteed due process rights and essential procedural safeguards.