When Chicago resident Lavette Mays, 47, was arrested in March 2015 after an alleged altercation with her mother-in-law, bail was set at $250,000. That’s unusually high, compared to both the national average of about $55,000, according to a 2015 Vera Institute for Justice study, and the $1,000 to $10,000 range local lawyer Dennis Dwyer estimates on his website as typical for domestic battery charges in Cook County.
Mays said in a phone interview she’s not sure why the prosecutors thought she was such a flight risk: The mother of two had professional contracts with the city, driving children to and from school in her neighborhood in the East South Side of Chicago. “I had a business and I had never been arrested before, so they told me it would be fine,” she said. “They told me I should be able to leave. It didn’t happen that way.”
The problem was that Mays couldn’t afford the 10% down or “$25,000 to walk,” so she waited more than a year in Cook County Jail for a judge to hear her case: “I sat there for 14 months because I wasn’t able to make bail.”
One theory that lawyers who later helped Mays have floated, she said, is she was hurt by coming to court with a private attorney — not a public defender — leading the judge and prosecutors to assume she had money. Her family at least had the means to hire the attorney, a seemingly rational decision, given that public defenders are notoriously overworked, spending as little as seven minutes on each case, according to a Mother Jones investigation.
But because she didn’t have the means for bail, Mays’ jail time cost her a business and home, separating her from her children, whom she could not support, from March 2015 to May 2016. She had no income while her legal costs mounted, and her kids had to leave home to stay with their father. Mays eventually pleaded guilty, but only because she didn’t want to keep waiting for her trial, she said.
“A lot of women are the backbone of their families, [so] when you’re incarcerating women, you’re incarcerating the family,” she said. “And yet they are ... giving you a sentence and charging you as guilty before being proved innocent.”
Bail isn’t being used as intended: an incentive to get the accused to show up for court. Instead, it ends up a punishment for being poor, convincing many who might otherwise fight charges to plead guilty.
Mays was eventually released, after a judge ordered two bail reductions and the Chicago Community Bond Fund stepped in. Without $7,500 from the fund, Mays would have been incarcerated for the entire time that her case worked its way through the courts, nearly 17 months.
She’s not alone. About 3 in 5 people who are admitted to local jails each year, according to Vera, have not yet been convicted of a crime. It’s hard to say how many of those millions are incarcerated solely because they can’t afford bail, but estimates vary from 14% to 39%, according to two recent studies. And no matter how you slice it, taxpayers foot a big bill: According to the Bureau of Justice Statistics, jailing people awaiting trial costs about $14 billion annually.
The consequences? Bail isn’t being used as originally intended: a financial incentive to get those accused — but not convicted — of a crime to show up for a court date. Instead, it ends up a punishment for being poor, convincing many who might otherwise fight their case to plead guilty, according to public defenders, social workers and formerly incarcerated sources consulted by Mic. This sentiment was also echoed by representatives of several bail funds, including Seattle’s Northwest Community Bail fund, a relatively new organization, and the Brooklyn Community Bail Fund, which has bailed out as many as 2,000 people since launching in 2015.
But this year the movement to abolish cash bail for nonviolent offenders has gained momentum. The Bronx borough president in New York has called for bail reform, as has California Sen. Kamala Harris and Kentucky Sen. Rand Paul, who in July introduced a bipartisan bill dubbed the Pretrial Integrity and Safety Act of 2017, to help states move away from a cash bail system. And other efforts are popping up in Texas, New Jersey, Chicago and Maryland, too.
So where is this movement heading — and why does it matter? Here’s what to know about the reasons for, effects of and problems with high bail in the United States, plus some potential ideas for solutions.
Bail can make innocent people plead guilty.
Even seemingly low bail figures could be an incentive to plead guilty, experts point out: If you can’t come up with $400 in an emergency, it doesn’t matter whether your bail is $500 or $50,000. Kayla Reed, of the St. Louis Action Council, said her organization has helped clients with amounts as low as $87.
“I came into the job like most public defenders do: idealistic, optimistic, take one client at a time,” said Scott Hechinger, a staff attorney with the nonprofit Brooklyn Defender Services in New York. “But no matter how hard I tried, no matter how solid my legal theories were, no matter how much investigation I did … bail determined outcomes.”
Specifically, even innocent clients were uninterested in fighting their case, Hechinger said, if it meant remaining in jail.
How much of an effect does this pressure have? An incarcerated person will plead guilty to a misdemeanor 90% of the time, according to 2013 figures from the Brooklyn Community Bail Fund. But if they get out, that percentage falls to less than 40%. Taken together, an incarcerated person is nine times more likely to plead guilty to a misdemeanor than someone on the outside.
And BJS figures suggest this could be a growing problem: The median time from arrest to adjudication is a not-insignificant 92 days — and 95% of jail growth between 2000 and 2015 has been in the unconvicted population.
About 3 in 5 people admitted to local jails each year have not been convicted of a crime, according to Vera Institute for Justice
Frustrated, advocates are turning to an increasingly popular solution: simply pooling money to bail people like Mays out. Though efforts have existed for a while, only recently have bail funds begun formalizing their structures, said Pilar Weiss, who helped launch National Bail Fund Network in November. Right now, the NBFN works with about 18 bail funds around the country and Weiss estimates that another 10 or 15 bail funds are operating more informally. One of them, the Bronx Freedom Fund, recently secured a $50,000 grant from Goldman Sachs to expand their efforts.
As these funds have grown, activists and organizers have realized that they can achieve two ends. In the short-term, bail funds keep people out of jail. But in addition, by proving bailed out people will still show up to court, the funds are helping to build a longer-term case against the overuse of cash bail — suggesting the damage bail causes to people’s lives is unnecessary.
What sort of damage?
Bail can ruin lives.
The personal and financial consequences of high bail go far beyond unwarranted guilty pleas. Most who are incarcerated long-term lose their jobs, said Ezra Ritchin, a project director at the Bronx Freedom Fund, which has bailed out more than 1,200 people in its 10-year history.
“During those first few days of incarceration, things fall apart,” Ritchin said. “It’s very likely that you will lose your job because you’re not showing up to work. If you’re homeless, you might lose your space in your homeless shelter, because if you don’t sign in for a day or two, the shelter is going to forfeit that space.”
This can affect anyone. Before her incarceration, Mays owned her transportation company — but over the course of the 14 months she was locked up, Mays lost the vehicles she was leasing and her contracts with local schools. The parents she worked with found someone else to drive their kids to school.
“You can’t live without having a paycheck,” Mays said. “If there was one thing I could change, it would be the [difficulty finding] employment.”
Mays’ experience is not uncommon in Chicago: Bail amounts in the city are often set prohibitively high, said Sharlyn Grace, an attorney who co-founded the Chicago Community Bond Fund. High bail is one reason the majority of Cook County jail inmates are actually pre-trial, even though the vast majority — nearly three-quarters of admissions — are accused of nonviolent crimes, according to a 2012 report from researchers at Loyola University Chicago.
Yet another case out of Chicago shows the human consequences of high bail: James Williams, age 44 at his release, spent nearly a year in jail from November 2015 to November 2016 after being accused of selling $40 worth of cocaine — causing him to lose his job and miss the birth of his son, according to a Chicago Tribune report, since he could not afford the $1,000 bail.