The problems with the U.S. bail system

This is part one in a series that examines corruption in the U.S. prison system. See part two here.

This week, the Democratic presidential debate moved to Flint, Michigan. One of the questions asked of Bernie Sanders and Hillary Clinton related to the United States’ growing inmate population. The U.S. currently incarcerates the largest number of inmates in the world. A portion of that population is made up of defendants awaiting trial in jails because they cannot pay the bails set by the court -- translating into a bail system that disproportionately affects the poor. It is a system whose history is worth examining to understand how this problem has evolved.

The bail system has its roots in colonial English law as security in the form of money or property given to a court in exchange for the release of a person from legal custody. American colonies adopted the system, and as early as 1776, states began adding sections to their constitutions prohibiting “excessive bail.”

In 1966, The Bail Reform Act was introduced and insured that, excluding an “offense punishable by death,” all citizens, “regardless of their financial status,” would not be “needlessly detained” while awaiting trial. The act stated that a person shall not be detained when it does not “serve the ends of the justice or public interest.” In other words, detention should be reserved for high flight risk individuals who the court does not believe will return to court to stand trial.

1984 saw amendments to the 1966 Bail Reform Act. These reforms allow pre-trial detention of an individual based on his or her perceived threat to the public. Previously, bail was based on risk of flight, but it is now based primarily on the judge’s discretion in determining the danger the defendant poses to the public. (Note that bail is granted to a person accused, not convicted, of a crime.) A 2012 study conducted by the Justice Policy Institute estimated that the bail industry brought in $2 billion in annual revenue that year -- a conservative estimate at best.

According to an article published by the New York Times in 2004, 40% of felony defendants released before their trial used a bail bond company. These companies are run by private citizens known as bail bondsmen to whom the defendant pays a non-refundable fee (typically 10% of the bail amount). In return, the bail company pays the court the full amount should the defendant fail to show up for court. Bail bond companies are typically insured by one of the 30 or so insurance companies that underwrite the more than $14 billion worth of bail bonds annually.

It is financially beneficial for the large insurance companies that underwrite bail bondsmen, the bail bondsmen themselves, and private prison owners to exploit people who cannot pay the bails set by the court. Indeed, this large, often overlooked, industry has spent over $20 million on lobbying and contributed more than $10 million to political candidates since the late 1980s. But alternatives to this system exist.

Washington, D.C. effectively did away with the money bail system beginning in the 1990s. The nation’s capital currently relies on a pretrial process wherein a pretrial agency collects data on, assesses the risk of, and supervises the release of defendants after they have been arrested. Individuals charged with a non-violent misdemeanor may receive a citation, be released and given a court date provided by the pretrial services agency (PSA). Defendants charged with felonies are transferred to court for presentment hearing. The PSA conducts evaluations on defendants' mental health, and provides substance abuse treatment programs. The whole process is typically completed within 24 hours.

Since its inception, the PSA has supervised around 17,000 defendants annually; the supervision cost per defendant is approximately $18 a day. One study published in the New York Times found that the annual cost per inmate in New York city jail exceeded $168,000 -- around $460 a day, or 25 times more than D.C. spends per day to supervise individuals interviewed and released by the PSA. The PSA system has resulted in lower jail capacity, and over 80% of defendants in D.C. return to court for trial. Though not lacking in flaws, this system holds promise as a nationwide model.

While the numbers of incarcerated people in the U.S. are troubling, the profitable nature of the system is even more so. Private prisons alone represent a $70 billion industry. And apart from the Philippines, the United States is the only country in the world that allows bail bondsmen. The result is a system in which individuals who cannot pay to be released from jail borrow enormous sums of money, often with crippling interest rates, in order to secure their freedom before trial.

Washington D.C has drastically reduced the number of people in its jails and the associated cost. It is time that the rest of us follow suit.