The Cost of Unfair Bail Costs

The shocking class and racial disparities in the justice system in the United States have been well documented; the fact that a Black man has a 16% chance of being imprisoned during his lifetime while a white man has a 2% chance is a pretty stark illustration of the way that the deck is stacked against minorities when it comes to going to prison in this country.

But the disparities actually start long before a trial and sentencing. I’m going to take a look today at an issue which is not nearly as widely covered as it should be: Bail.

A quick thumbnail view, for people who are not familiar with the concept or who are a little bit fuzzy on how bail works. When someone is arrested and charged with a crime, ou may be offered the option to pay bail, a sum of money which can be paid in order to be released from jail to await trial. Within 48 hours of being arrested and charged, the accused attends a hearing in which a judge weighs the facts of the accusation and the character of the accused and then decides whether or not to offer bail. Additional conditions may be imposed as well, such as not leaving the area or not associating with certain people. If the accused does not attend court for the trial, the bail amount is forfeit and a warrant for arrest will be issued.

The idea behind bail is that people should not languish in jail while they are awaiting trial. This contributes to overcrowding, a very serious problem in a number of jails and prisons in the United States, and it can cause psychological stress and anguish. Jail is not a pleasant place. Paying bail allows people to live their lives while they await trial, something which is especially critical when a trial may be six months or more in the future.

Under the Eighth Amendment, ‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’ However, it turns out that ‘excessive bail’ is in the eye of the beholder.

It is important to note from the very start that more people of colour are going to end up in a situation where they will need to pay bail. White people are less likely to be stopped and they are also less likely to be taken to jail. Speaking from personal experience, I have received fingerwagging warnings from police officers for offenses which would result in an arrest if I was a person of colour. And it’s also important to note that people of colour also experience economic disparities which put them at a disadvantage when it comes to making bail. I would highly recommend the ‘Women of Color and Wealth‘ series at Racialicious for more information on economic disparities.

Thus, from the very start, minorities are at a distinct disadvantage when it comes to a bail hearing: They are more likely to need the hearing in the first place and they are less likely to be able to afford whatever amount is set. This disadvantage is compounded by the fact that there are profound racial disparities in bail assignments, as documented in studies like ‘Go Directly To Jail: Racial Disparities in Felony Bail Decisions’ and ‘A Market Test for Race Discrimination in Bail Setting.’

Why are there such disparities?

Because bail is at the discretion of the judge. While many regions have guidelines which the judge is supposed to use when making a bail determination, ultimately, the judge gets to decide the amount of the bail. Thanks to widespread beliefs about criminality and minorities, many judges believe that simply being a minority makes someone more of a risk, and thus higher bail is assigned. This may not occur on an entirely conscious level, either. Judges, like everyone else, have internalized racism from the society they live in. And thus, when faced with a young white man and a young Hispanic man with identical offenses and profiles, a judge will still issue two different bail decisions and can come up with justifications for them even though racial discrimination is clearly involved.

The amount of bail deemed ‘excessive’ is also highly variable, depending on where one is. For example, if someone’s bail is set at $300,00o in one area of the country, that amount might be deemed reasonable in another. Even if it is considered excessive bail and reduced to $100,000, that amount might still be out of reach for the accused; ‘excessive’ is very much dependent on one’s own economic situation.

And when you don’t make bail, you stay in jail.

Why can’t people make bail? Can’t they just call a bail bondsperson?

It’s not that simple. It’s true that some people can make contact with a bondsperson and make arrangements to have bail paid that way. But an upfront payment to the bondsperson is still required, and that may be out of reach. Some people do not have money, usually a percentage of the overall bail and also nonrefundable, to put down as a deposit. And they may not have friends or family who do, either. Guess who is most likely to be in this situation? An accused who is a member of a racial minority. Some people in the United States have no cash, no assets, and no one to call upon for assistance. This means that they have no realistic way of making bail. Bail of $100 might as well be excessive for them.

For undocumented immigrants, the bail situation becomes even more complicated. They may be afraid to disclose their immigration status, and they certainly don’t want to call fellow undocumented immigrants for help, out of fear that they will be arrested as well. Family members may not find out about a loved one in prison for an extended period of time, as it is dependent on the accused having access to a trustworthy person to relay that information. Not only that, but in many regions, higher bail rates are allowed for undocumented immigrants, because they are deemed a risk.

Bail is applied unequally. And it has unequal results. Wealthy individuals can pay bail. Disadvantaged individuals cannot. These class disparities run throughout the justice system; wealthy people can pay for a defense. Disadvantaged people cannot. As do the racial disparities: White people are more likely to receive light sentences. They are more likely to be sent to minimum security prisons, where they are less likely to be exposed to dangerous rioting.

Bail disparities are one small piece of a much larger puzzle, all of which is in urgent need of reform.