Shyama Venkateswar Distinguished Lecturer, Hunter College and Director, Public Policy Program, Roosevelt House

Posted on November 13, 2015 · Posted in Frank Friday

The money-based bail system in the United States is an important contributing factor to the racial disparities within the criminal justice system in the country. At the national level, about62 percent of all people in jail are pre-trial detainees who are unable to post cash bonds or pay to be released. African American and Latinos who are arrested are more likely to remain in jail because of their inability to pay their way out. Demographically, blacks and Latinos together comprise approximately 30 percent of the population in the United States; yet, in terms of bail outcomes, they represent 50 percent of all pretrial detainees.

Research shows that those who are detained during their pre-trial period are three times more likely to be sentenced to prison than those defendants released on bail, which begins the cycle of recidivism and longer and longer sentencing. Those who cannot afford bail – many of whom are already living lives of precarity – can spend months in jail and in the process lose their jobs, homes and suffer other devastating consequences. Recent New York City jail data —where nearly 90 percent of those incarcerated are black or Latino — showed that more than half of people held in jail, mostly for misdemeanor crimes, remained there until their cases were resolved because they couldn’t afford bail of $2,500 or less. And even if the financial obstacles could be cleared, blacks are 44 percent more likely to be denied bail compared to whites in similar legal circumstances.

Recent attention on the troubled bail process system in the United States has underscored the gravity of the problem of mass incarceration in the country and the embedded structures of inequality and racial biases that perpetuate the system. The chief judge of New York State,Jonathan Lippman, is a leading advocate for bail reform, a crucial element to make the system more fair and less costly. He has argued that it costs almost five times as much to keep a person in jail awaiting trial as it does to provide supervision for those who are released. In 2013, he submitted a bill that would allow people arrested for an alleged crime to go home without having to post bail unless there was evidence that they posed a danger to the community, or that they were a flight risk. The bill also allowed periodic check-ins for drug tests and other forms of supervision. The legislation has not moved in Albany.

Other districts across the country like Kentucky and the District of Columbia are experimenting with bail reform where low and moderate risk defendants are released or recommended to community supervision programs to participate in drug treatment or have other conditions imposed on them instead of languishing in jail. MacArthur Foundation’sSafety and Justice Challenge has resulted in other courts nationwide to develop innovative strategies – based on risk factors rather than race or resources – to address overcrowding in jails and to radically reduce the racial and income disparities of the criminal justice system.

There is no single solution to reduce America’s current prison population which represents more than 20 percent of the world’s prison population. Reforms in pretrial detention and overhaul of the bail system are important first steps to make New York State’s practices closer in line with many other parts of the country. These urgently needed policies would also play an instrumental role in breaking down the vicious cycles of mass incarceration that continues to deny justice to millions, mostly poor men of color.

The writing and opinions expressed herein are those of the authors and do not necessarily reflect the positions of the Roosevelt House Public Policy Institute or Hunter College.