Has bail reform in America finally reached a tipping point?

When Tyler Smith was arrested, he says mistakenly, for stealing a phone and a watch back in July 2015, the 21-year-old was working two part-time jobs in security and delivery. The vast majority of the money he made went to supporting everyday expenses such as rent and electricity for him and his mother, who was unemployed. Mr. Smith had little in terms of savings.

Smith was taken to Cook County Jail and a $2,500 bail was set for his release, an amount equal to more than a month of his income. Unable to post bond, Smith was stuck in the jail system for the next seven months, costing him both of his jobs. Without his income, his family came close to being evicted from their home on the South Side of Chicago.

“I had lost almost my whole life,” says Smith, whose case was ultimately dismissed.

According to the Cook County Sheriff’s Office, of the more than 4,000 people sitting in Cook County Jail today more than 60 percent of those awaiting trial are there because they cannot afford to pay their bond. Nationwide, the United States Department of Justice estimates that 450,000 people are stuck in limbo every day, imprisoned before their day in court.

Prison reform advocates argue that using bail to hold people before they go to trial perpetuates cycles of poverty, incarceration, and racial discrimination in the criminal justice system. Studies have found that black arrestees are assigned higher bail amounts than white arrestees with similar charges and criminal histories, and are more likely to remain in jail awaiting trial. Other research indicates that those who were detained before trial were three times as likely to be sentenced to prison than those who paid bail. They also were more likely to be arrested again at a later date.

Now, jurisdictions across the country seem to be taking this research to heart. In Illinois, lawmakers introduced in February legislation that would outlaw money bonds, and Cook County State’s Attorney Kim Foxx moved last month to release inmates with bonds of $1,000 or less who could not afford to pay them. Nationally, both New Jersey and Maryland have dramatically overhauled the way they use cash-based bail this year, and other states promise to follow suit. Facing lawsuits and tight budgets, states and local governments across the country have started to rethink the use of money to keep people in jail.

“We’re really at an amazing moment with bail,” says Larry Schwartztol, executive director of the Criminal Justice Policy Program at Harvard Law School in Cambridge, Mass. “There is a really extraordinary wave of momentum to change in pretty fundamental ways [how] bail works.”

Ann Hermes/Staff

Visitors post bail for themselves and their family members at the Bond room at the Cook County Jail on February 10, in Chicago, Illinois.

Pressure for reform

Mr. Schwartztol says the impetus for change is coming from several directions. First, there has been a flood of lawsuits filed in the past two years challenging the use of bail to keep poor people in jail. One group, the Civil Rights Corps, has been involved in nearly 20 of these challenges. It has ongoing cases in Illinois, Louisiana, Texas, Georgia, Tennessee, Missouri, and Massachusetts.

Lawsuits have been largely successful in court, thanks in part to actions taken by President Barack Obama’s Department of Justice, which issued an amicus brief on the issue last year. In that brief, it argued that  “a bail scheme that imposes financial conditions, without individualized consideration of ability to pay and whether such conditions are necessary to assure appearance at trial, violates the Fourteenth Amendment” and its equal protection clause and is thus unconstitutional.

Although new US Attorney General Jeff Sessions has expressed skepticism about past efforts on jail and criminal justice reform, the shift to a new administration is unlikely to affect the changes that are taking place around bail reform, experts say.

“This is an issue that local jurisdictions and states get to decide, and the momentum that we’re seeing is taking place at that level,” explains Schwartztol. “So the presidential election does not change that in any direct way.”  

District of Columbia Superior Court Judge Truman Morrison has been lobbying for nationwide bail reform for more than a decade and says that these recent lawsuits have had a ripple effect in both small and large jurisdictions across the country.

“The real beauty of this litigation campaign is that it’s motivating change in an effort by people who are leading justice systems in America to avoid the consequences of litigation,” explains Judge Morrison. When a lawyer files a lawsuit outlining the ways that a town’s handling of bail is illegal and a judge then outlaws those practices, says Morrison, neighboring towns and cities notice. Often, they are using bail in the same way, so they change their practices quickly to avoid being sued.

In addition, new research on the financial toll that bail takes has persuaded many policymakers to consider alternatives. In a study released in January, the Vera Institute of Justice found that although government agencies in New Orleans receive $4.5 million a year in revenue from bail and other fees, the city pays $6.4 million annually to jail people who cannot afford bail.  

“Our system is costly for both defendants and their families who have to pay these costs, [as well as] for taxpayers who have to pay for the cost of incarceration for those unable to pay,” says Mathilde Laisne, a senior program associate at Vera’s New Orleans office and a coauthor of the report. “So it’s really both a fairness and fiscal-efficiency issue.”

Government leaders have been further persuaded by the fact that there is little evidence that the money being spent to detain people before trial is making their cities and counties safer. Dangerous individuals with connections to well-financed criminal networks can easily buy their way out of jail, while those who are less dangerous often languish behind bars.

In December, Chicago Police Superintendent Eddie Johnson noted that people arrested on gun charges in Cook County were six times as likely as shoplifters to post bond.

“The gangs will put their money together because they want that guy out, because he’ll go get that rival gang member that they’re trying to get,” explains Mr. Johnson. “So no matter how high we push it up there, they’re going to figure out a way to get this guy out of jail.”

For these reasons, Johnson as well as Cook County Sheriff Tom Dart advocate eliminating the cash bond system altogether in the county.
Similarly, GOP Gov. Chris Christie of New Jersey joined the American Civil Liberties Union in lobbying for the bail reform measures that went into effect in the state at the start of this year, in part because he was convinced of bail’s ineffectiveness in keeping dangerous defendants off the streets.

M. Spencer Green/AP/FILE

Inmates at the Cook County Jail in Chicago, line up to be processed for release on Sept. 29, 2011. Activists who say too many poor people are unfairly languishing in U.S. jails because they can't afford to post cash bail are increasingly deploying a new tactic: Bailing out strangers. Community groups are collecting donations from individuals, churches, cities and other organizations in more than a dozen cities, including New York, Chicago, Seattle and Nashville, to bail out indigent prisoners.

Community advocacy

Another push for bail reform has been coming from communities themselves, especially those that bear the burden of paying for money bonds. In recent years, community-led bond funds have been popping up in cities across the nation, raising money to bail out people in jail awaiting trial. Funds currently exist in New York, Massachusetts, California, North Carolina, Connecticut, and Illinois.

Here, the Chicago Community Bond Fund (CCBF) has posted more than $335,000 in the past year to free 52 people from Cook County Jail or home confinement. Most of the bonds it posts are about $5,000. After the trials of those people end, the volunteer-led fund gets its bonds back and uses the money to help others trapped in the system.

While the fund allows defendants to fight their case from the outside, CCBF cofounder Max Suchan says it has also created a platform for freed clients like Smith to play a role in lobbying for change.

Since the CCBF posted bail for Smith and his case was dismissed, for example, the 21-year-old has shared his story publicly with lawmakers and the media. In February, he spoke about the harms of bail at a press conference announcing the introduction of legislation in Illinois that would prohibit the use of money bonds in the state.

Smith hopes that by sharing his story, people will begin to understand that the damage of bail does not end when a person is released from jail: In the three months since his case was completely dismissed, Smith has been unable to find a job, and his former employers have been unwilling to rehire him because of his involvement in the criminal justice system.

Court appearances

Funds like Chicago’s have also highlighted a flaw in the underlying assumptions of the bond system. “One of the things that these funds do besides getting people out is demonstrating again that you don’t necessarily need to put money in the balance in order for them to show up to court,” says Nancy Fishman, who serves as project director for the Vera Institute of Justice’s sentencing and corrections program.

In 2013, a study by the Pretrial Justice Institute found that bonds that require no money upfront are just as effective as traditional bonds in ensuring a defendant’s appearance in court. Other studies have shown that mail and phone-call reminders about court dates can also be effective alternatives.
These alternatives are well known to Morrison, who has seen his D.C. jurisdiction transform over his 38 years on the bench from a system that relied on cash bail to one that uses none. It is a model that many places, including New Jersey, are looking to as they enact bail reform, in part because of its impressive track record.

Last year, 90 percent of those arrested in Washington were released without bond. The rest, those deemed high-risk by the district’s Pretrial Services Agency, were detained without the option of money bail.

Morrison says that of those released, more than 88 percent made every court date and most were not rearrested. Only
2 percent of those rearrested were brought in on violent offenses.

“This is not just a system that has a best-practice architecture and is rational and fair; it’s also a system that actually works,” says Morrison. “It is safe and effective.”
Morrison says that although two years ago he was pessimistic about the prospects for bail reform nationwide, he’s now “fairly optimistic there’s some momentum building.” But Ms. Fishman of the Vera Institute says it’s unlikely that there will be a widespread adoption of the D.C. model.

“Building a better system takes time, and there are a lot of things to be considered,” she says.

Jurisdictions interested in reforming their bail system may not have the means to eliminate cash bail entirely. Continuing pressure from bondsman lobby groups, which earn money from interest paid on money bonds, also makes rapid changes unlikely. Instead of eliminating cash bail entirely, these jurisdictions may opt to make their bail systems less punitive, says Fishman.

New Mexico opted for this route last November when voters approved a constitutional amendment to help poor people trapped in the jail system.

“Even places that aren’t removing cash bail can put in checks and balances to make sure that folks aren’t sitting in jail simply because they can’t afford bail,” says Fishman.

But for people like Lavette Mayes in Chicago, changes to the cash bail system cannot come soon enough.

When Ms. Mayes was arrested in March 2015 for battery, her only experience with the justice system had been through jury duty. The mother of two had a house on the South Side of Chicago and ran a small business transporting children to and from school.

After two days at the local jail, Mayes was charged with aggravated battery. The court set her bond at $250,000. If she wanted to return home to her kids, she would have to pay 10 percent of the bond – $25,000 – an amount beyond what she and her family could afford.

After 14 months in jail, she was able to post bail with the help of money from friends and the CCBF. By that time, Mayes had lost her home and business, depleted her savings, and missed the graduation of her son from kindergarten and her daughter from junior high.

Mayes has been unable to find work because of her time in jail and relies on family members for housing. Her children make her promise to come home soon whenever she leaves the house.

“Jail is not fair. I call it a plantation for incarceration,” says Mayes. “I wasn’t convicted of anything, and yet still I couldn’t work.... I’m guilty before I’ve been proven innocent. And it’s supposed to be innocent until you’re proven guilty. I want people to know that we have to do better than what we’re doing.”