There are many injustices in our nation’s criminal justice system. But one of the greatest injustices occurs before the accused are even convicted of a crime. It’s the application of our money bail system, and it works like this.
For example, let’s say a mother is accused of shoplifting at a department store and is arrested. A judge sets bail at $20,000, which she doesn’t have. So her family goes across the street to the bail bondsman, who says they’ll put up $20,000 if the family gives the bondsman 10%, which would be $2,000. But of course, most working people don’t have that kind of money sitting around. So this woman has three choices: she can sell or pawn possessions to get that money. She can sit in jail until her court date—which, because of the backlog in our courts, can take weeks, months, or possibly years—and potentially lose her job, her home, or custody of her children if they’re left unsupervised. Or she can plead guilty and have a criminal record that would make it hard to find work in the future.
More than 450,000 Americans currently sit in jail while they await trial—many of which are only there because they don’t have the money to pay to get out. Many are there for nonviolent offenses. None of them have yet been convicted of a crime.
This is not only an issue of criminal justice. It’s also about economic justice. After all, in a system where justice is supposed to be blind, is it not a serious injustice that—for the same offense—someone who can pay gets out, but someone who can’t pay sits behind bars with all the consequences that brings? This shouldn’t be like a Monopoly game.
As a career prosecutor, I’m especially concerned that our broken money bail system can also threaten public safety. In one study, nearly half the defendants considered “high-risk” or dangerous were released, simply because they could afford bail. Most of the transnational criminal organizations I’ve dealt with have a lot of money. Their members can easily pay bail and walk out of jail. Meanwhile, defendants who don’t pose a risk but cannot afford bail sit in jail. That doesn’t make us safer.
Then there’s the fact that money bail disproportionately affects low-income communities and communities of color. Nine out of ten defendants who are detained cannot afford to post bail. Black defendants are more likely than similarly-situated white defendants to be detained before trial and less likely to be able to post bail. In fact, Black men pay 35% higher bail amounts than white men.
That’s not fair. That doesn’t keep us safe. And we must be smarter.
Instead of keeping someone in jail because they don’t have money, we would run them through what’s called a personalized risk assessment system, which is a much better measure and indicator of whether someone is a flight risk or a threat to their community. The court would review that mother’s information, and if the woman poses little risk, she could go home until her court date.
And in order to do risk assessment right we must acknowledge that people of color are more likely to be arrested. So a risk assessment looking only at prior arrests would continue to disproportionately impact communities of color. Which is why instead of analyzing prior arrests, we should look at factors like prior convictions. And we must work to ensure these systems are as neutral as possible.
Or consider another innovative alternative to money bail—instead of keeping that mother in jail to make sure she appears in court, what if we just called or texted her to remind her about her court date? Studies show even a simple phone reminder can be very effective to get people to appear at trial. In Multnomah County, Oregon, automated phone call reminders resulted in a 31% decrease in defendants failing to appear in court.
States all across the country—from Colorado to Kentucky and New Jersey to West Virginia—have pioneered these types of innovative bail reforms. They know this isn’t only a bipartisan issue, it’s a nonpartisan issue. It’s just common sense.
That’s why Senator Rand Paul and I recently introduced a bill that would accelerate progress and encourage states to replace their bail systems. It’s called the Pretrial Integrity and Safety Act, and it would accomplish three key objectives.
First, our legislation empowers states to build on best practices. Because each state is different, instead of the federal government mandating a one-size-fits-all approach, this bill provides resources directly to states so they can pioneer and implement the most effective policies tailored to their needs.
Second, our bill holds states accountable. Any state receiving support must report on their progress and analyze data and trends to ensure that reforms like risk assessments are not discriminatory.
Finally, this bill encourages better data collection. Data on the pretrial process is notoriously poor. By improving it, we can help ensure that reforms yield better outcomes—for defendants, families, and taxpayers. In fact, the Pretrial Justice Institute estimates that bail reform could save American taxpayers roughly $78 billion a year.
The time has come to remedy the injustice of our bail system. Because whether someone is detained before trial should be determined by whether they’re a risk—not whether they’re rich.