Jailed Without Trial: The Injustice of Cash Bail

Like a majority of states, posting cash bond (commonly referred to as “cash bail”) is a common condition of pre–trial release for criminal defendants in North Carolina. Yet shockingly, according to the United States Department of Justice, as many as two-thirds of the people in jail at any given time have not been convicted of a crime.  Cash bail continues to be a driving force behind racial and economic injustice in North Carolina, and our only chance to overhaul that system requires changing ahistorical and insidious views about crime, class, and those most disproportionately impacted: people of color.

What is cash bail?

Cash bail is a refundable amount of money (or real property value) that must be paid to the court in order for a criminal defendant to be released pending trial.  In theory, cash bail serves as a security, or assurance, that a defendant will appear at trial. If the defendant shows up to court and does not violate any lawful conditions of pre–trial release, the cash bail is returned. Otherwise, the cash bail is forfeited.  In most counties in North Carolina, cash bail is the only option most defendants have to secure their release from jail while waiting for trial.  

What happens when the defendant can’t afford the cash bail amount?

If the defendant can’t afford to post the entire amount of cash bail in a particular case, he or she can enlist the help of a bail bondsman. Bail bonding is a for–profit business that is regulated in North Carolina by the Department of Insurance. A bail bondsman will post bail for the defendant in exchange for a non–refundable fee, typically 10–15% of the total bail amount. In extraordinarily risky cases where, for example, the defendant has a history of flight from past charges, a bail bondsman may demand a higher fee. Bail bonding is a multi–billion–dollar business in the United States. If the defendant cannot afford the bail bondsman’s fee, or if the defendant cannot find a bail bondsman who will accept the risk in a particular case, the defendant - who has only been charged with a crime - will remain incarcerated pending trial (which can take more than a year to actually be held). 

How is the amount of cash bail determined?

After an arrest, the amount of cash bail is set by a magistrate and reviewed by a judge at the defendant’s first appearance in court. Alternatives to cash bail may be considered, such as release on a person’s own recognizance (which is essentially that person’s promise on their honor to return). Many of North Carolina’s judicial districts have written guidelines for considering alternatives to cash bail and for setting the amount of cash bail that take into account a variety of factors. Though the focus of the guidelines is on the charges and the perceived threat to the public from individuals who are guilty of the charges, the cash bail amounts handed down are often influenced by fear and bias against the accused.  

What are the problems with cash bail?

The concept of cash bail defies two principal pillars of our criminal justice system: 1) that defendants are innocent (and should not be punished) until proven guilty and 2) that justice should be fair to the rich and poor alike.  But that isn’t the case with cash bail.  

According to a 2016 survey conducted by Bankrate.com, just 37% of Americans have enough savings to cover a $500 or $1000 emergency. Where bail amounts for drug and property offenses are routinely in the five and six–figures, it should not be surprising that most defendants simply don’t have the resources to post cash bail outright or even to afford a bail bondsman’s fee. They sit in jail pending trial as a result. Others stretch and scrape, go into debt or put their friends and family members into financial hardship to get out. Even these people are unfairly burdened by cash bail, because the resources devoted to securing their temporary liberty might otherwise have been used for their defense against the charges. The people forced to remain in jail have it even worse. 

After just a few days in jail, defendants can lose their job, their home, their car, their relationships, custody of their children, and go into debt from missed bill payments. They may be incentivized to plead guilty to something they did not do, as an alternative to waiting for trial. Oftentimes the wait for trial is longer than the sentence from a conviction. However, a criminal record sticks and is very difficult to expunge. It can have long–lasting and far–reaching consequences for employment, housing, and other civil rights such as voting, firearms ownership, and government benefits. 

Defendants who remain in jail often fare worse at trial and sentencing than defendants who are able to bail out. In many instances they appear in court shackled and in jail uniforms. That is also to say nothing of the psychological effects of being incarcerated and how they can manifest themselves in a defendant’s appearance. These factors can lead to bias by judges and juries who are tasked with considering the defendant’s guilt or innocence of the pending charges. Coupled with the systemic bias against populations who are particularly disadvantaged by cash bail, such as racial and ethnic minorities, people in poverty, and members of the LGBTQ community, there are compelling reasons why the cash bail system results in unequal justice. 

What are the alternatives to cash bail?

Common alternatives to cash bail include unsecured bond, which is a cash amount that defendants stand to lose if they fail to show up for trial, but they do not have to post anything up front. Release on the defendant’s own recognizance is also common for first offenders and minor charges. Otherwise, courts and magistrates have few options in North Carolina. Only 40 of 100 counties in North Carolina have pretrial release services. Pre–trial release services are analogous to probation, but serve as an alternative to cash bail before a defendant is convicted. Defendants are required to check in with social workers and meet other milestones. They also may receive reminders about court appearances and other assistance to make sure they show up. 

Other possible alternatives include using a public safety checklist, which authorizes judges to forego cash bail in cases where defendants do not pose a genuine flight risk or threat to the community, and to impose conditions such as home detention or electronic monitoring with pre–trial detention as an absolute last resort. These alternatives pose their own issues for liberty and fairness. Electronic monitoring, for example, can make it difficult to hold a job and maintain relationships. In comparison to spending an indefinite term in jail, however, these alternatives to cash bail at least allow a defendant to make a dignified appearance in court and to maintain some semblance of a normal life while awaiting trial. 

Why hasn’t the system changed?

The cash bail system has remained entrenched for primarily two reasons: fear and money. Although defendants are supposed to be innocent until proven guilty, it is common to hear public outcry when high–profile accused persons seem to easily bail out. Many distinguished criminal defense lawyers in North Carolina can tell stories about clients who faced outcry in the press and social media about why their bail was too low, or not high enough to keep them incarcerated. Elected judges who are responsible for setting bail are also vulnerable to being replaced if they appear soft on crime, or reluctant to protect the public from dangerous individuals even in low–profile run-of-the-mill cases. 

In addition, while alternatives to cash bail are less expensive than mass incarceration, they are not without cost. Expanding pre–trial release services to replace cash bail altogether would cost millions of dollars for the most populous counties. Another element of the financial impediment to reforming the cash bail system is lobbying. In 2018, the nonprofit National Institute on Money in Politics ranked North Carolina’s bail bonding industry second-highest in the nation for political contributions, totaling $148,300 between 2009 and 2017. 

Reforming cash bail could be a significant stride toward solving the problems of mass incarceration, racial and economic unfairness in the criminal justice system, and economic fragility of some of North Carolina’s most vulnerable communities. Instead, cash bail has taken on a punitive and prejudicial dimension that is at odds with its ostensible purpose—for defendants to show up to trial—and what our system of justice is supposed to be.

Justin Osborn