MONEY BAIL IN THE U.S.

What is bail?

Bail is a contract agreement between the court and the accused to come back for their trial. This agreement can include a phone call reminder from the court or people being released on their own accord, but most cities, counties, states and the federal government currently require money bail.

Facts

• The United States and the Philippines are the only countries with a for-profit bail industry.

• As of 2016, there are 646,000 people locked up in more than 3,000 local jails throughout the US.

• Seventy percent of Americans in local jails are being held pre-trial - meaning they have never been convicted of a crime and are legally presumed innocent - and we spend more than $9 billion annually to keep them there. 

• As many as 9 in 10 of those people are stuck in jail because they can’t afford to post bail. 

• Blacks, Latinos, and Native Americans are twice as likely to be stuck in jail because they cannot afford money bail. 

• A Human Rights Watch report done in New York found that nearly 90% of defendants with a bail of $1,000 or less could not pay

• The Eighth Amendment to the U.S. Constitution prohibits excessive bail. Yet, many bail amounts are excessive for someone without the financial means.

• In Washington, DC, nearly 88% of defendants are released without money bail. In that system, 88% of released defendants have made all scheduled court appearances and remained arrest-free while in the community pending trial. This is similar or better than average rates in money bail systems.

• The bail industry is backed by large insurance companies that underwrite roughly $14 billion in bonds a year. The industry as a whole makes over $1 billion annually.

• Felony and misdemeanor defendants unable to make bail were 13 percent more likely to be convicted and received sentences five months longer than equivalent defendants who were not detained pre-trial. 

U.S. Bail Timeline

• 1789: Congress establishes Judiciary Act

  • Act stated all non-capital offenses were bailable

  • For capital offenses, the decision to detain before a trial was left up to the judge

• 1966: Congress passes Bail Reform Act

  • Intended to decrease financial hardships of bail on low-income individuals

  • Judicial officers required to take the accused’s family, community, employment, criminal history, and history of non-appearance at trial into consideration before setting release conditions

• 1976: Kentucky outlaws for-profit bail services

  • This effectively eliminates commercial bondsmen

    • Instead, statewide agency tried to determine accused’s flight risk with a risk assessment tool combining questionnaire about the accused’s history and and other social factors

    • Judges would use this information to set bail

• 1984: Reagan Administration passes amendment to Bail Reform Act

  • The 1984 Bail Reform Act implemented preventative detention, which held individuals without without any evidence that they would commit a crime again.

  • According to the Federal Judicial Center, the act allowed for defendants to ‘be detained because of the risk of danger to the community even where there is no showing that they are likely to engage in physical violence.’

• 1990s: National Association of Bail Insurance Companies partners with ALEC to start promoting private prisons

  • This collaboration marks the start of an increasing profit motive for bail.

• 1997: Washington D.C. becomes only jurisdiction to eliminate secured money bonds

  • Since 2012, 88% of released defendants on average have made all scheduled court appearances and 88% on average remained arrest free while in the community pending trial.

• April 2016: Maine Governor LePage signed bail bill into law

  • The bail code gives judges authority to decide whether to impose fines in specific cases (before, fines were mandatory)

• May 2016: Alaska Senate passes bill to reform bail

  • Laws now require assessment of accused’s risk of committing a new crime and not appearing in court instead of requiring cash bail

  • The bill also adds more ways for non-violent criminals to serve sentences outside a cell  

• November 2016: New Mexico passes five-ballot measure granting courts new authority on bail

  • Courts are also permitted to release accused without bail if there is no evidence that accused are dangerous or a flight risk

• 2017: Legislators in New Jersey county passed a bill to release accused without bail

  • County intends to do risk assessments to determine if accused is flight risk, risk to community, of threat to witness

    • If not, accused will be released on own recognizance and ordered to return for trial

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