Blog Post

Justice Demands We Fix Our Broken Bail System

Roseanne Scotti

Mustafa Willis had a job and no criminal record.  After being arrested in Newark, he was forced to remain in jail for months because he could not afford to pay the amount of bail that was set for him.  While he was in jail, he lost his job and a close family member passed away.  Desperate, his family turned to a for-profit bail bond company to secure his release.  Eventually, the charges against him were dropped.  But he and the family members were saddled with a $7,000 bill!

In most places in this country, when someone is arrested they have the option of posting money bail in order to be released pending trial. That opportunity isn’t an option however if you don’t have the money. As a result, thousands of people remain in jail awaiting trial.

Individuals who can’t afford bail money can spend months and even years in jail waiting for their day in court. The damage they suffer is incalculable.  Individuals held in jail pending trial are three times more likely to be sentenced to prison than those who remain free pretrial.  Their prison sentences are two times longer than those released pending trial.  They lose jobs, housing and connections to family and community.

Even those who manage to buy their freedom pending trial pay an unfair penalty.  Mustafa Willis’s story highlights the failure of the current system and one of its most corrupt practices—commercial bail.

People who don’t have the resources to pay for bail on their own often turn to for-profit bail bond companies.  For a price, usually 10 percent of the bail amount, the company will secure the person’s liberty pending trial.  It doesn’t matter if charges are dropped or the person is found not guilty, the bail bond company still gets paid.  Individuals forced to use for-profit bail companies often find themselves punished to the tune of thousands of dollars even if they are never convicted of a crime.

In this way, the for-profit bail bond industry preys on the most vulnerable individuals and communities. Only two countries in the world, the United States and the Philippines, allow this predatory system under which private companies profit at the expense of people who are presumed innocent.

A DPA-commissioned report found that three-quarters of those in New Jersey jails were awaiting trial rather than serving a sentence.  More than half of them warehoused for nonviolent offenses, including drug charges.  Almost 40 percent were incarcerated simply because they couldn’t afford sometimes small amounts of bail—we’re talking a couple hundred dollars in some cases.  The average length of time people wait in jail is 10 months.  The vast majority of those locked up are poor people of color.  Against steep odds, DPA took on this injustice in New Jersey and won.

The tragic death of Kalief Browder, held in Rikers Island jail for three years before the charges against him—for allegedly stealing a backpack—were dismissed, has focused the nation’s attention on our broken bail system.  What New Jersey did to reform its bail system, basing pretrial release decisions on risk rather than resources, limiting the use of money bail and allowing for nonfinancial conditions for release pending trial, can be a model for states across the country.

Justice demands we fix our broken bail system.

Roseanne Scotti is the New Jersey state director of the Drug Policy Alliance.

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