Last week, Sen. Elizabeth Warren, D-Mass., announced her plan for criminal justice reform. The plan contains a host of changes to the current system, but one in particular stands out: ending the cash bail system. She joins eight other presidential candidates who also support eliminating cash bail.
To be clear, this does not mean eliminating all forms of money bail, which the state of California did last year. Cash bail is one of the primary forms of money bail in the United States. Another more common form is through a bail agent. A court will determine a certain amount of money to be paid, and, rather than pay the full amount, the defendant will pay a bail agent a small percentage of it, which the defendant does not get back. If the defendant does not show up for court, the bail agent must pay the full amount, but they can go after the person’s assets to be repaid. Cash bail, however, is when the defendant pays the full bail amount to the court and gets most of it back (there usually is a fee) after showing up for all of their proceedings.
The problem with this system is that many people cannot afford to pay the full amount for bail. This puts them in the position of having to decide whether to go to jail or go to a bail bondsman, which will be more expensive in the long run. In addition, courts know that bail agents initially require their clients to only pay a percentage of their bail, so they will set a higher amount if they suspect that a defendant will go to a bail agent. Faced with this choice, many defendants choose to go to jail. This may be why almost half a million people in jail have not been convicted. The justice system is slow, meaning those awaiting trial can spend many months or even years behind bars.
The impacts of that incarceration can be tragic, such is the case of Djibril Niyomugabo. In Grand Rapids in January 2016, Niyomugabo was charged with stealing a bottle of wine from a car, to which he pleaded not guilty. Because he could not post bail, he was held in jail. A few days later, he was found unconscious with a bedsheet wrapped around his neck. He was taken to a hospital in Grand Rapids and died two days later.
Furthermore, the flaws in the cash bail system disproportionately affect minorities, specifically African Americans and Latinx individuals. Courts were less likely to release a Black defendant on their own recognizance than they were white defendants. In addition, Black defendants between 18 and 29 were given higher bail amounts than defendants of any other race or age.
The problems do not end once people are let out. Those who are incarcerated for anytime longer than a few days can lose their jobs, making it harder to get their lives back together if released. If the defendant has a family, losing income can make it difficult to make ends meet. To avoid putting that strain on themselves or their families, defendants will sometimes simply plead guilty. That decision can subject them to harsh fines and years of probation. In addition, having a criminal record makes it much harder to get a job, get into school and access certain public benefits. This also increases that likelihood of a false conviction, which means the real perpetrator would go unpunished.
It does not have to be like this. There are alternatives to a cash bail system, such as one Washington, D.C. began implementing as far back as the 1990s. Rather than forcing people to pay money to maintain their freedom, they determine which defendants are most likely to show up for trial as well as which ones are threats to public safety and make a judgment on whether to jail them. In this system, 89 percent of defendants appear for their proceedings.
The injustices in the cash bail system undermine the integrity of the criminal justice system as a whole. It is a system that jails people based not on their guilt or the threat they pose to the public, but on their ability to pay. Resolving this issue is critical to fighting the United States’s problem with mass incarceration. Former Vice President Joe Biden, despite having worked on the 1994 crime bill that many progressives have pointed to as being deeply flawed, has changed his position on cash bail. It is well past time for the country to follow suit.
Joel Weiner can be reached at firstname.lastname@example.org.