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Cash Bail Primer

Public Justice / What We Do  / Debtors’ Prison Project  / Cash Bail / Cash Bail Primer

Definitions

  • Money bail is an amount of cash a person must pay to be released before trial. Here is a brief explainer of the bail system and a brief overview of bail reform.
 
  • Pretrial jailing means that a person is jailed before their guilt or innocence is determined, either by a trial or a plea agreement. Most people in jails have not been convicted of a crime—they are awaiting a trial.
 
 
  • Pre-arraignment jailing means that a person is jailed before they have been charged with a crime, seen a lawyer, or had their first appearance before a judge.
 
  • Presumed innocent? When a person is arrested, under the law they are presumed innocent until proven guilty. 1 in 3 California arrests never leads to a conviction. But even if a person is innocent, they will be jailed after arrest if they can’t pay cash bail.
 

Does money bail actually promote court appearance?

  • Proponents of money bail say it is necessary to ensure that people appear in court.
  • However, study after study shows that money bail does not increase court appearances.
  • This makes sense, because the fees most people pay to bail bond companies are non-refundable, even if they make all their court appearances. More importantly: almost no one intentionally flees in the US.
  • Even these companies rarely actually lose (“forfeit”) bail if someone doesn’t show, so they also have little reason to encourage the arrested individual to show up.
  • Money bail has been shown to actually increase future nonappearance because it destabilizes people’s lives by costing them their housing, jobs, and mental health care.
 

What about public safety?

  • The current system jails based on poverty, not safety.
  • Pretrial jailing destabilizes people’s lives and increases future arrests for new crimes.
  • Money has nothing to do with public safety: under California law, money bail is not even forfeited if a person is re-arrested for an alleged new crime while out on bail.
  • Separate from money bail, California law allows people charged with a list of violent felonies to be detained if the police and prosecutors have clear evidence and there are no other reasonable ways to protect the community. Money bail circumvents this legal process by jailing based on money, not safety.
  • Jailing people just because they can’t pay makes us all less safe.

How pretrial jailing impacts people

Jailing some of the most vulnerable Angelenos harms communities:

 

People who cannot buy their freedom are caged under inhumane conditions. In LA Jails:

 

How many people are impacted?

  • In Los Angeles, home to the largest jail system in the country, it is estimated that 46% of the 14,000 people held in jail are being detained pretrial, often for days and weeks, before receiving an attorney or seeing a judge.  That’s 6,440 people! And it’s been estimated that about 72% of those detained pretrial are there because they can’t afford bail. That’s 4,600 Angelenos unnecessarily, and unjustly separated from their children, their families and their lives.
  • In 2019, over 17,000 Angelenos paid money bail pretrial.
  • The bail schedule compounds the racial inequities in LA’s criminal system. Latino/as and Black people are twice as likely to be jailed because they can’t pay bail.  In LA, Black people represent 8% of the County’s population but 29% of the jail population. The less the pretrial system relies on money, the less drastic these racial disparities will become.
  • While the separation from your community is awful enough, the extreme and life-threatening harms that people face while in jail  pretrial is also a crucial part of these less visible stories. 
  • BIPOC and LGBTQ+ people are disproportionately impacted by this systemic injustice. Over 85% of people in LA jails are BIPOC. LGBTQ+ people are twice as likely to be arrested relative to the rest of the population.  A survey of incarcerated LGBTQ+ people revealed that 74% of those interviewed were incarcerated simply because they couldn’t afford the price of freedom.
 

Who benefits? Commercial bail bonds companies

  • Only two countries in the world allow the for-profit money bail industry: the U.S. and the Philippines.
  • If an arrested person is wealthy and can afford to pay the entire amount of their bail, that amount is returned to the person at the end of a case. But most people don’t have that option. In California, the extremely high bail amounts coerce families to pay commercial bail bond companies a non-refundable fee (typically 10% of the total bail amount) in exchange for bail companies to pay the court.
  • The industry extracts huge sums of money from Black and brown communities. More than $40 million is extorted by the bail bonds industry annually for LAPD arrests alone (who only make one-fourth of arrests in the county). $30 million of that is taken from Black and Latino/a Angelenos.
  • The cash bail industry extracts billions of dollars in annual profits from the poorest people in the U.S. Last Week Tonight with John Oliver recently aired a segment on this.
 

How much money? LA County has created a chart called a “bail schedule.”

  • It is like a menu: it lists the price of release for different charges.
  • Median money bail in California is $50,000, compared to $10,000 nationwide.
  • When a person is arrested, they are immediately released if they can pay. If they are unable to pay, they stay in jail for days before they get a chance to have a lawyer or see a judge, even if there is no reason to keep them in a cage.

The Alternatives

The country is moving away from money bail – LA is behind the curve:

  • The most effective court appearance policy is court reminder mailers and texts. The data show that people rarely miss court because they are intentionally fleeing; often, they simply forget.

     

     

  • The Office of Diversion and Reentry (ODR) offers wrap-around services and permanent supportive housing to some jailed people with mental health or substance use disorders. ODR intervention decreases re-arrest and missed court. All this – housing, treatment, and medicine – is also less expensive to the county than jail. The County should invest more in services like ODR’s and less in pretrial jailing.
  • New Jersey and Houston have used less money bail and seen better outcomes.
 

The Lawsuit

Urquidi et al. v. City of Los Angeles et al.  challenges LA’s use of money to decide who is released and home with their families and who is detained.

  • The California Supreme Court ruled last year that it is unconstitutional to require money bail without considering ability to pay. But people in LA are still jailed every day because they cannot afford cash bail.
  • We are specifically challenging the use of the predetermined automatic bail schedule in the days between arrest and arraignment (when a person is first brought to court). During this period, people who can’t pay languish in police stations or county jail facilities based on the police charges, before a judge or even any lawyer has seen the case.

The goal of the lawsuit is to force LA to immediately stop jailing people based on access to cash; to develop more fair and effective pretrial policies; and to shift investment towards systems of support and care, not jails.

Note: It is important to use people-first language when discussing the criminal legal system. This short piece from a directly impacted person explains why.

  • For example: “incarcerated person,” “people in jail,” “person convicted of a felony.”
  • When talking about individuals, use names.
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