Photo: iStock

When listing all of the problems in America’s justice system, the racial disparities are too numerous to count, the facts, alone are astounding.

The rate of marijuana use is about the same for blacks and whites (although more blacks say they have never used marijuana), but blacks are more than three times more likely to be arrested for marijuana possession. Whites use other illicit drugs more often and are arrested at lower rates. Blacks receive sentences that are 20 percent longer for committing the same crimes as whites. White suspects are offered plea deals more often.

Advertisement

Black drivers are stopped more often by police. Black people are searched more often by law enforcement officers. African Americans are 2.5 times more likely to be shot and killed by police. Black people are four times more likely to be killed by police if they are unarmed and not attacking.

But the inequities behind all of these statistics pale in comparison to the disparities of the money bail system, and a new economic analysis by the Hamilton Project at the Brookings Institution exposes the existential problems of this legal calamity. Titled The Economics of Bail and Pretrial Detention (pdf) the report reveals the data behind a most pressing issue in criminal justice.

Yes, the money bail system is biased against black suspects, but that is not why it is so bad. The data that shows that bail disproportionately affects the poor is not the reason why this issue is so important, nor is the inherent immorality of the bail system related to the fact that it contributes to America’s mass incarceration industry.

Advertisement

The reasons why money is immoral, racist and unconscionably unfair is twofold:

  1. According to the dictates of the Constitution, every single one of the millions of people incarcerated because of money bail is innocent.
  2. Everyone knows money bail does not work.

Crime is falling but the jail population is rising.

The report notes that arrests have fallen since the mid-1990s and statistics also show that the number of people in state and local jails who have been convicted of crimes has also fallen over the past decade. In fact, despite what most people think, violent crime and property crime have both fallen steadily since the early 1990s according to Pew Research and government data.

Advertisement

Graphic: Pew Research

The number of people in jail who have not been convicted of a crime, however, has more than doubled since the early nineties. In 1990, about half the people locked in local jails had not been convicted of a crime. In 2016, the number had grown to 65 percent—from about 200,000 inmates to more than 450,000.

The reason for this is bail.

Bail is more expensive and more common than ever.

The purpose of bail is to ensure that a person will appear at trial or to detain people who are suspected but not convicted from harming the public.

Advertisement

Courts would often release suspects without bail because they didn’t pose a danger to society. But even though the number of people who have been denied bail remains about the same (around 10 percent) the number of people who were given bail—and the amount—has increased dramatically. And it has nothing to do with protecting the public. In fact, the percentage of people who are forced to pay bail for nonviolent and drug offenses saw the most stunning increases.

Aside from how common money bail has become, the amount courts charge for freedom has also increased. The cost of bail for drug and public order offenses have grown by 33 percent and 48 percent. Median bail for violent offenses increased by nearly 67 percent between 1990 and 2009.

It is also important to note that the time period between when a person is arrested and when they have to show up for court is getting longer. This means that people who haven’t been convicted of crimes and therefore, are technically innocent, sit in jail for longer for longer periods simply because they don’t have the money.

Advertisement

Black people and poor people are disproportionately affected.

Just as judges give black people longer prison sentences, statistics show that black defendants receive higher bail amounts and are less likely to be released without bail. According to a 2017 report by the ACLU and Color of Change (pdf), 70 percent of people in local jails have not been found guilty of a crime. Most of the people (60 percent) in jail are there because they can’t afford bail.

The median income of people in jail because of bail is $16,000 per year, compared with $33,000 for the rest of the country. Because of income disparities, it also means that black defendants are more likely to plead guilty to a crime because they can’t afford bail. The report uncovers some not-so-surprising statistics:

  • Bail for black defendants is, on average, $10,000 higher than bail for white defendants, according to a recent Princeton study
  • White defendants are released on their own recognizance more often than black defendants but whites are more likely to be arrested for committing a crime while they are out on bail.
  • Black men and women ages 23 to 39 held in local jails earned a median income of only $900 and $568, respectively, in the month prior to being held.
  • Black defendants between ages 18 and 29 receive higher bail amounts and are less likely to be released on recognizance than were white defendants.
  • In Maryland, the $250 million in bail fees are overwhelmingly paid by black defendants.
  • In New Orleans, black residents paid 84 percent of bail premiums and associated fees.

Advertisement

Bail doesn’t work.

This is not an opinion. There are no studies that show people released on bail show up to court more often than people who are released without bail. A Columbia University study shows that bail means people are more likely to commit a crime. Detaining people for money also makes them poorer because they can’t work.

But the biggest reason we know that money bail is an outdated, ill-informed system is that the places where it has been abolished haven’t seen a rise in crime or recidivism.

Advertisement

Instead of cash bail, the District of Columbia has used an algorithm since 1991 that determines the risk of whether a person will show up in court. The cashless bail system releases more than 90 percent of people who are arrested for a crime. And guess what happened?

Nothing.

Crime didn’t rise. There weren’t riots on the street. While many have criticized the District’s algorithm as having racial bias baked in, the Washington Post notes that:

In the past five years, about 90 percent of defendants released were not arrested again before their cases were resolved, according to data collected by the D.C. Pretrial Services Agency. Of the roughly 10 percent who did get in trouble again, the vast majority are not rearrested for violent crimes.

Advertisement

Philadelphia did it after the city’s comptroller noted that it would save the city $75 million. California did it and the Purge hasn’t started yet. Every place where money bail has been abolished has seen savings and no rise in crime.

So why does money bail still exist?

Because... money

Every year, an estimated $14 billion in bonds are secured by insurance companies. The majority of these bonds are secured by nine huge insurance corporations. Although the bail system costs the American people $15 billion a year, the industry’s revenue totals $2.4 billion a year, according to a report by Color of Change and the ACLU.

Advertisement

The use of private bail bond companies and the growth of the insurance sector has made money bail a profitable and powerful growth industry. From 2012 to 2014, insurers contributed $1.2 million to the American Bail Coalition’s lobbying efforts.

Graphic: ACLU/Color of Change

In 2013 Jerry Watson, chief legal officer of AIA Holdings (one of the largest surety insurers), told a reporter of his 107-year-old company, “You know how many checks has [sic] this company written to pay a bail loss? ... Not a single one.”

Advertisement

I guess he doesn’t count the bodies as a loss.