Bail Fail Highlights Broken System

By Thomas Giovanni, Brennan Center for Justice
This post was originally published 9/11/12 on the Brennan Center for Justice blog as part of JPI Bail Month.

Today, the Justice Policy Institute released the first of three important reports regarding bail. The report highlights the consequences of a system dependent upon an accused person’s ability to pay. It is important to remember that people subjected to this system are considered innocent according to the law. Yet, they are penalized nonetheless. JPI, a national non-profit organization, offers new data and provides recommendations for practical reform.

Entitled Bail Fail, the study highlights how, in conjunction with the large-scale, fast-paced, assembly line nature of the criminal justice system, the bail system creates a reality where the outcome of a criminal case depends less on the facts of the case and more on the finances of the person charged. In the criminal justice system, 80 percent of the accused are too poor to afford an attorney, more than 60 percent are people of color, and the bulk of the cases are low-level, non-violent offenses. Most of this population cannot afford bail and are incarcerated before trial for long periods even though they have not been found responsible for any crime. Bail Fail notes “60 percent of the jail population is not convicted but being held pretrial,” and that “this issue is a huge contributor to the mass incarceration of people in the United States, resulting in overcrowded facilities and unsustainable budgets.” The report further points out that “those too poor to pay a money bail remain in jail regardless of their risk level or presumed innocence . . . U.S. Attorney General Eric Holder in 2011 stated that keeping people awaiting court dates in county jails costs around $9 billion each year.” That amount is roughly equivalent to the annual budget for the Environmental Protection Agency.


Unfortunately, the problems of pretrial incarceration rarely come to the public’s attention, and when they do, it is in instances that are far from the norm. The last time the media discussed bail, they were reporting on Dominique Strauss-Khan. In May 2011, the former director of the International Monetary Fund was charged with sexually assaulting a Manhattan hotel housekeeper. Arrested on a Saturday, Strauss-Khan was initially denied bail on Monday, and then granted bail three days later. Justice rarely moves that swiftly. He posted $1 million bail and a $5 million bond, and agreed to remain under house arrest with 24-hour armed guards and electronic monitoring. His wife paid for the bail and the bond, as well as the estimated $250,000 monthly security costs. Prosecutors dismissed the charges at the end of August 2011. Strauss-Khan's experience is very different than that of the average person who must navigate the bail system.

The average person facing criminal charges does not even have the means to pay bail of even $500 or $1,000. As a result, they end up in jail before and during their trial and, because of visitation restrictions, they are unable to contribute fully to their own defense strategy. As Bail Fail notes, they are also “put under greater pressure to enter a plea bargain, which has become the de facto standard in resolving an average of more than 95 percent of cases each year.” Because trials take months to begin, people all too often capitulate under the harsh conditions of jail and choose to accept a plea bargain rather than remain in confinement until the end of trial.

JPI’s report presents an opportunity to bring long overdue attention to the pathologies of bail.  In a justice system already overly influenced by race and class, the wealth-dependent bail system is a key contributor to the phenomenon of mass incarceration. Enacting JPI’s recommended reforms – including using risk assessments, using citations to reduce the number of people arrested, and reforming the bail system to comply with the Constitution’s equal protection clause – will bring some fairness to this broken system.

Thomas Giovanni is Counsel to the Justice Program at the Brennan Center for Justice. 

Note: JPI has named September JPI Bail Month and will publish a series of three bail reports on bail, for-profit bail bonding and the community impacts. JPI is also hosting a series of events throughout the month including panel discussions and conference calls.