The Cash Bail System Explained

The cash bail system in the United States is a travesty of justice by forcing people, almost all of them poor, to come up with money they don’t have. It literally keeps them in jail, even though they’re not guilty of any crime. People lose houses, cars, contact with their family, jobs, all because the prosecutor and a judge decide to impose an unreasonable cash bail on a person’s freedom. I remember a call from a client in the Baton Rouge jail.

He’d been arrested on a bogus warrant and had the judge impose a six-figure bail. He was a skilled carpenter, had a great job. On top of it, he had a girlfriend who was eight months pregnant. Because he couldn’t make the bail, he not only lost his job, but he was not there for the birth of his son. Only through crowd funding from your contributions are we able to take those cases on. We can’t take all of them, but by taking some, we bring light into these incredibly dark, dangerous places.

Jails and Prisons Put Profits Over Justice

To understand how the criminal legal system’s cash bail system operates, you need to understand one inescapable fact: it is a for-profit institution that you help fund. Despite the fact that these entities operate at a profit, taxpayers still bear more than their fair share of the burden of their costs, with prisons and jails costing taxpayers $80 billion a year, a figure which will only climb unless America breaks its addiction to mass incarceration.

Yet despite taxpayer funding, make no mistake the criminal legal system’s cash bail industry is a business. And just like any business, be it a bank or a Fortune corporation, it needs to earn revenue to support itself, and increase its revenue to foster future growth. America’s cash bail system is in a vital cog—and one of the most profitable players—in the system by increasing the number of bodies behind bars.

By setting unrealistically high bail amounts for routine offenses, and keeping the legally innocent incarcerated as long as possible, prisons and jails cost US taxpayers billions unnecessarily each year. And the vast majority of these innocent detainees are non-violent offenders, Black or Latino, and living below the poverty line. Because of their socioeconomic circumstances, they are detained until trial with no way to bail themselves out, helping increase the cost of jails and prisons.

How Did We Get Here?

Initially, cash bail tried to serve a reasonable purpose. By creating a monetary penalty for those who might flee charges, it ensured that anyone accused of a crime would face their day in court or pay the price. While awaiting your trial, you could pay a certain amount of money as collateral to be freed from detention, the money you would lose if you missed your court date. When it was conceived, America had not yet adopted its racist addiction to mass incarceration. Since the 1970s, when then-president Nixon launched a “war on drugs,” the cash bail system has served to unnecessarily detain and convict poor Black and Brown people and destroy lives, families, and communities.

In essence, the cash bail system has made poverty a crime and perpetuates systemic racism against Black and Latino communities.

How Much Does Bail Usually Cost?

This depends greatly on the severity of the crimes and the individual judge or prosecutor setting the bail. But one common variable is skin color, with Black and Latino defendants having a 10-25% higher likelihood of being held on bail. When they are held, the amount of their bail is twice as high as bail typically set for white defendants.

Looking at just urban areas, we find that the act of setting bail itself can rely largely on skin color. Racial bias can play a huge role in setting bail, with one study showing that, in larger urban areas, Black felony defendants were 25% more likely than white felony defendants to be held on bail before a trial. That climbs to 50% if the defendant is a young Black male.

These racial disparities are not unique to any particular geographical region. Even in states that have enacted some form of pretrial or bail reform, detention rates continue to reflect this same racial divide.

And it isn’t just the cost of bail itself. Besides lost wages, people in jail can pay hefty fines for their detention and are then hit with even more fees. We’ve all seen movies that perpetuate the myth that everyone is entitled to one phone call, but the fact is people in our jails can only make calls they can afford. But with nationwide averages for jail calls ranging from $5-$25 for 15 minutes, the calls they can afford are severely limited.

And that is just one example of the extrajudicial fees people in prisons and jails can expect. Mandatory court fees are typically set at amounts well outside what most people can afford, and once inside people can be charged into poverty for such necessities like toothpaste, toilet paper, soap, and even food beyond the notoriously horrible free meals prisons and jails provide. Even those aspects of the criminal legal system that are ingrained in our legal rights, like the right to a public defender, accrue their own fees. And with every step of this fee schedule requiring its own administrative costs to maintain, the costs of that administration are generally passed off to the locked-up people themselves.

It’s a steep set of fees, fines, and hidden costs that can add up to a mountain of debt for the incarcerated, which can be devastating for those already living in poverty. And if that debt goes unpaid, temporary incarceration can become an indefinite form of indentured servitude.
Defendants usually have two options, neither of which are good.

How Bail Bond Agencies Prey on the Needy

The first option is to contact a bail bond company and pay what is called a non-refundable premium. This generally runs around 10 percent of the total bail amount, with the bail bond company guaranteeing the balance of the debt to the court. This proves helpful to those detained on a bill they couldn’t possibly pay on their own but comes with severe penalties.

Over the past few decades, the commercial bail industry has grown into a $2 billion juggernaut. And they’ve done so by following the highly lucrative model established by predatory payday lenders: provide immediate assistance to customers at their most desperate, then fleece them with exorbitant interest rates. Unlike payday lenders, however, bail bond agencies have broad legal authority to perform citizens arrests on their clients – sometimes without cause.

Because they are empowered to act outside the law, they have much greater leverage over their clients, which they use to charge hefty fees and essentially extort those who are at their most vulnerable. And like the bail industry itself, these fees have an outsized impact on Black and Latino Americans and the economically disadvantaged.

The second option is to simply remain in jail until their trial date, which can be weeks or months. And that option comes with its own hazards.

More Than Just Imprisonment

The ripple effect or even a few days in jail can be intense, particularly for those living below the poverty line. For those living paycheck to paycheck, those few days can be devastating. The detainee in Baton Rouge mentioned earlier is just one of the millions of people who have seen their lives completely disrupted and irrevocably destroyed by this process.

Families are particularly hard hit, especially if the person imprisoned is the primary caregiver. Nearly 80% of women in jail are single moms, meaning every day they spend behind bars is a day a child goes without their only parent. This can have enormous long-term ramifications, and can even lead to parents losing custody of their children simply for committing the crime of being poor.

Phycological Trauma and PTSD

In addition, there is a steep psychological toll on the prisoners. Prisons are dehumanizing by design, balancing constant trauma, persistent surveillance, threats of violence, and social isolation to help jailers maintain security and control. Even those who have been incarcerated for a short time have reported signs of PTSD from their term, and this can be even worse for those who had experienced abuse before their imprisonment.

The quality of the available medical care does not improve matters. In more than 60 percent of the country’s largest prisons, medical care for inmates is provided by private companies that are notorious for cutting corners. Whether it’s providing sub-standard care or denying needed treatments, these companies rake in millions in profits by providing bare minimum coverage. This sets off a spiral of health problems, with those in prison showing a massively disproportionate risk of developing chronic disease while incarcerated due to inadequate health care and nutrition.

Pleading Innocent People Guilty

To be clear, the stated primary goal of our jails is not to inflict suffering for suffering’s sake. Rather, the horrible experience of being detained is designed to encourage even innocent detainees to accept plea deals. These deals may shorten sentences, but from a legal standpoint, they amount to an admission of guilt. This means that even innocent people will now have a criminal record, making it more difficult for them to gain employment, gain custody of children, rent a home or apply to higher education.

It creates a downward spiral and ultimately more crime, but they are still widely used because of the short-term gains for law enforcement and prosecutors. Conviction rates go up, but more importantly, those fines and penalties keep rolling in, helping perpetuate and expand the system.

Where Does the Money Go?

To examine just how much revenue the cash bail system generates, it’s important to note that there isn’t any kind of central authority dictating bail amounts. As a truly systemic issue, this crisis grew out of the criminal legal system’s financial structure as more and more officials began to use it to their benefit.

Prosecutors, for example, can point to the higher conviction rates under their tenure to boost public perception for their office. But more importantly, by helping funnel money into the government coffers, they also help fund pay increases that bring in other co-conspirators. Judges, corrections officers, law enforcement, and government officials all draw their salaries from that same pot and have a vested interest in watching it grow.

And of course, one of the biggest beneficiaries of this is the for-profit prisons themselves. Private prisons run unabashedly as a profitable venture, bringing in $3.9 billion a year keeping people jailed, and benefiting from this miscarriage of justice.

And they know how to reinvest that money. Adding to the deep-seated, systemic nature of this problem is the fact that the bail bonds and private prison industries have grown powerful enough that it now lobbies government in the same manner as the pharmaceutical industry, and with similar results. Thanks to millions spent on campaigns at every level, the industries as a whole can keep this dysfunctional system going.

What Can I Do?

The Fair Fight Initiative advocates for a fair and equitable criminal legal system. Cash bail should be abolished. It’s been proven to be ineffective and the citizens of the United States know this. With education and awareness, Fair Fights goal is to end cash bail and mass incarceration. With the support of donations, the Fair Fight Initiative provides support for victims and their families to bring litigation against those that have been taken advantage of, harmed, or died in jail. Please consider making a tax-deductible donation to support our cause. Fair Fight is grateful for your help.