Analysis Law and Policy

The Cash Bail System Is Unconstitutional—So Why Won’t the Practice End?

Rachel Anspach

"Until we get the public demanding it, we’re not likely to see extraordinary changes."

This is the first article in Rewire‘s two-part series on the cash bail system. You can read part two here.

Low-income people spend an average of 23 days in jail before going to trial, wreaking havoc on their lives and those of their loved ones, simply because they cannot pay bail. For Sandra Bland, who died in jail after being arrested during a traffic stop, the cost of being held on bail was her life.

Not only is the widespread practice of cash bail immoral, it is unconstitutional, lawyers say.

“The poor people who can’t pay get detained, and the wealthier people get released, and that’s what we think is wrong,” explained Alec Karakatsanis, founder and executive director of Civil Rights Corps, which brings cases arguing the illegality of cash bail to courts across the country. “It’s an equal protection violation, because it’s creating a system where the poor are detained and the rich are freed; and it’s a due process violation, because it’s keeping presumptively innocent people in jail prior to trial without the procedures and findings necessary to justify that kind of deprivation of liberty.”

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The arguments that cash bail is unconstitutional are pretty straightforward, and, according to legal experts, there is no real justification for the system. Yet courts continue to charge bail because there is not enough political pressure to end the practice. “Until we get the public demanding it, we’re not likely to see extraordinary changes,” explained Karakatsanis. “The courts are also responsive to what the public thinks …. With the criminal legal system, we need a social movement that forces our society to confront these issues and that changes people’s minds.”

Even as the unjust, racially biased system remains in place, advocates are working to reduce the number of people affected, using litigation to outlaw cash bail in local jurisdictions, state- and national-level legislation to curtail or end the practice of assigning money bail, and nationwide bailouts. 

National bailouts led by a coalition of organizations in the Movement for Black Lives have raised awareness of the harms of cash bail, which can lead to cultural change—an important step in a longer political battle. As Mary Hooks, co-director of Southerners on New Ground (SONG), explained, “We need people whose hearts and minds know that it’s unconstitutional to lock people up in cages when they have not been tried for anything in order for bail reform to be a law that sticks.”

Reinforcing White Supremacy

Judges who employ cash bail often argue that people are more likely to show up in court if they’ve put their money on the line. This logic does not hold up—and organizations like the Brooklyn Community Bail Fund (BCBF), which partnered with the National Bail Out Coalition to bail out Black mothers and fathers, can prove it. “Ninety-five percent of our clients who we pay bail for have made it back to all their court dates,” said Terrence Bogans, director of bail operations at BCBF. “So our work directly shows that folks come back to court because they care about their lives, and they don’t need a financial burden that they need to satisfy.”

The system of cash bail is also racially discriminatory. Judges are more likely to charge Black defendants bail and to assign them higher bail amounts for the same charges compared to white defendants. “We see the pattern of the criminal justice system, besides incarcerating Black folks at an egregious rate, also sapping the money and resources out of communities,” explained Color of Change Senior Campaign Director Scott Roberts. “Because of a history of economic exploitation, Black communities are already trying to play catch-up in terms of wealth, household income, and being impacted over and over again by these kinds of extortions.”

Advocates like Roberts contextualize cash bail within the history of white America extorting Black people for their labor, property, and money—from slavery to Jim Crow to the modern-day prison-industrial complex. Given this country’s legacy of slavery, it is traumatic for many Black people to have to raise money to buy the freedom of their loved ones who have not been convicted of any crime, explained Roberts.

Further, most of the charges Bogans sees leveled against BCBF’s clients stem from poverty, such as stealing a bar of soap from a convenience store, jumping a turnstile because they couldn’t afford a Metro card, or sleeping in front of a storefront because they are homeless. But instead of government institutions directing resources toward the social safety net, which could give people the resources and tools they need to break the cycle of poverty, $14 billion in taxpayer funds annually go into holding presumptively innocent people in jail. The bail system prioritizes criminalization over rehabilitation and reintegration.

“About 90 percent of the clients [whose bail] we pay for are folks who are Black or brown. The same way that a lot of this is tied to poverty, the vast majority is tied to race,” said Bogans, whose New York City-based organization bails out individuals in Brooklyn, Manhattan, and Staten Island. “When we talk about what types of people are stopped on the street and searched, and what types of people on their commute home from work are most likely to interact with the police, it’s Black and brown people.”

Black Americans are disproportionately likely to experience racial profiling—being stopped and searched by police while driving, on their way home from work, or relaxing in the park with their loved ones. Investigations in cities across the country including Sacramento, Greensboro, and St. Paul have found that police stop and search Black drivers at much higher rates than white drivers, despite being less likely to find contraband as a result of their search. Being subject to discriminatory police surveillance greatly increases Black people’s chances of getting arrested on minor charges and then charged bail.

Through funneling money from poor Black folks to multinational private bail companies, the cash bail system fuels the transformation of the prison system into big business. In this way, cash bail is part of the larger prison-industrial complex, which lines the pockets of the wealthy and enforces white supremacy.

If folks pay their entire bail amount, the idea is that their money will be returned after their trial. But most people cannot afford their full bail, instead paying 10 percent to a private bail bonds company, which pockets the cash. People who pay these companies never see that money again, and neither do the courts. “This industry is making billions of dollars every year,” explained Roberts. “The industry is the number one opponent to bail reform.”

The United States joins the Philippines as the only other country in the world to allow commercial bail operations.

A Multi-Pronged Approach to Ending Cash Bail

Efforts to end money bail are multi-pronged and include litigation, legislative campaigns, reform of prosecutor practices, and activist bailout and political education efforts.

In April, Karakatsanis had a major victory in Harris County, Texas, where a judge ruled that money bail is unconstitutional. He has also seen legal victories against cash bail in localities including Jennings, Missouri; Rutherford County, Tennessee; Calhoun, Georgia; and Jackson, Mississippi. Such legal wins are concrete steps toward ending cash bail throughout the country.

Meanwhile, organizations like Color of Change are leading legislative efforts to curtail cash bail, such as California’s SB 10, which advocates believe has a good shot at being voted into law during the next legislative session. SB 10 would greatly lower the number of Californians held on bail by speeding up pretrial hearings and employing a risk-assessment model to determine bail assignments, allowing people deemed safe for release to go home as they await trial.

Color of Change is also building teams of local members in ten cities across the country, pressuring local prosecutors to transform the way their offices use cash bail—through reducing their use of the practice and encouraging unsecured bonds in the limited cases when cash bail is used. With unsecured bonds, people owe bail money after failure to show up in court rather than for pretrial release.

BCBF has pioneered a model to bail folks out, aiming to pay their client’s bail immediately post-arraignment, so they never have to get on a bus to New York City’s Rikers Island jail complex. Bogans explained that this is important because, “just a single night in Rikers has so many collateral consequences. You have not only your risk for physical safety, but people are now missing work for an additional day so they’re at risk of losing their jobs. Someone may be living at a shelter where they have a curfew, and they’re at risk of losing their bed and all their property at the shelter. People have children who are now left alone and at risk of [Administration for Children’s Services] getting involved in their case.”

Activists in the National Bail Out Coalition have organized mass bailouts, in partnership with BCBF, for Mother’s Day, Father’s Day, Pride, and Juneteenth. A member of the bailout coalition, SONG has bailed out around 50 Black folks so far, and Hooks estimates the coalition has bailed out over 200 people since they launched the effort in May. Hooks, who came up with the idea for the national bailouts, explained that the campaign is also geared toward “creating an opportunity for folks to give voice and narrative to a conversation that can be filled with statistics.”

They continue these efforts alongside political education campaigns to fight against what Hooks calls the “normalization” of cash bail in Black communities.

Activists call for government institutions to prioritize needs over profits, divest financial resources from the racially biased prison system, and invest in historically marginalized communities. These investments could look like fully funded and staffed public schools, mental health services, employment programs, and access to basic necessities like food and housing.

“We want there to be dramatically fewer people arrested. But when people are arrested and prosecuted, they should be released on the least restrictive conditions reasonably necessary,” said Karakatsanis. “In most cases that’s being released on their own recognizance, maybe with some help to get back to court like a phone or text message reminder of their court date, or child care, or help getting to court.”

Cash bail inflicts trauma, deepens economic insecurity, and tears apart families. All individuals have the right to be presumed innocent until proven guilty and expect equal protection from our laws—that is supposed to be the foundation of American democracy. Ending cash bail is one clear-cut way to bring our criminal justice system closer to lining up with our Constitution’s promises.

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