What Really Happens with Jail & Bail by Rebecca Lehman

“Usually only one factor determines whether a defendant stays in jail before he comes to trial. That factor is not guilt or innocence. It is not the nature of the crime. It is not the character of the defendant. That factor is, simply, money. How much money does the defendant have?”

-U.S. Attorney General Robert Kennedy, September 2010

“Our intentions with the charity event were to raise money for [a national children’s medical philanthropy].” –Organizer of recent “Jail ‘n’ Bail” fundraiser, February 2014

In the lifetime of many college & university students, troubling changes have taken place throughout the US criminal justice system, especially troubling given our country’s consistently falling crime rates during that time.

Troubling Trends

A national trend toward incarceration caused a quadrupling of the people imprisoned in jail, state prisons, and federal prisons, from 500,000 people in 1980 to 2.3 million in 2012. When we combine this with people under parole or probation supervision, 6.94 million people are supervised by the US adult correctional system – or roughly 1 in 35 US adults. Roughly a third of these people are being detained in local jails. (Bureau of Justice Statistics)

People in jail may be there due to a sentence, but more likely they are being held there before going to trial for the crime(s) of which they are accused.  Since 1996, the number of people held in jail waiting trail has grown at a much faster pace than the number of people there due to sentencing.  By 2006, the proportion of people in jail pretrial increased from half of the jail population to 61%. (Pretrial Justice Institute)

Once in jail on charges, there are options for release while awaiting trial: money/commercial bail, release on own recognizance, and release to a supervised program.  Since the 1990s, the assignment of money bail has increased (PJI) at the same time that the average bail amount has increased by $30,000 (Justice Policy Institute).

Under the current system “bail punishes the poor because they cannot afford to buy their pretrial freedom,” according to Jamie Fellner, Senior Counsel with the US Program at Human Rights Watch. “For people scrambling to pay the rent each month, finding $1,000 for bail can be as impossible as finding $1,000,000.”

Impact of Money Bail

I think it’s worth pausing to remember that a person in jail on charges waiting trial is, in our justice tradition, supposed to be considered innocent until they are proven guilty in fair court proceedings.

When not able to raise the funds for bail, people in jail awaiting trial to defend themselves may lose their job or have their business fail, may lose their home or apartment, may lose their car, may have their children’s lives disrupted as they’re moved to temporary housing, and may experience a disruption in needed medical care. In the criminal justice system, the impact of people in jail pretrial for not being able to pay bail contributes to overcrowding and unsustainable budgets. (Justice Policy Institute)

A clear racial disparity has been found in the pretrial process, the impact of which has a ripple effect contributing to racial disparities throughout the prison industrial complex.  Black and African American defendants are less likely to be released on their own recognizance than white defendants; African American defendants ages 18-29 receive significantly higher bail amounts than all other types of defendants (JPI). A 2012 study out of Yale University identified that unconscious bias on the part of judicial officials demonstrate that we value the freedom of white defendants $60-$80 more per day than black defendants.

A wealth of research highlights the interaction of race, age, gender, and socioeconomic status directly impact pretrial decisions around release and bail. Over fifty years of research has consistently shown that being detained pretrial – including being detained simply for not having the money for bail – greatly increases the likelihood to plea bargain guilty, to be convicted, to receive a prison sentence, and to receive harsher prison sentences.  All of these hold true when controlling for factors such as the current charge, prior criminal history, and ties to the community. (Pretrial Justice Institute)

Simply put, not having the money to pay bail means you’re more likely to be imprisoned and for a longer time.

A Failing System

One great concern is that money bail hasn’t been effectively demonstrated to maintain public safety or increases the rate at which defendants successfully make court appearances (JPI). In his 2013 State of the Judiciary address, Chief Judge Jonathan Lippman said the current NY system “makes no sense and certainly does not serve the best interests of our communities and our citizens.”  (New York Times)

Judge Lippman also stated it “strips our justice system of its credibility.” Indeed, many argue that the demonstrated negative affect of wealth disparity on judicial outcomes violates the Equal Protection Clause of the Fourteenth Amendment:  Charged with the same crime, a person with the expendable income to pay money bail has greatly better process through and outcome from their charges.  Summarized by the Justice Policy Institute, “for all intents and purposes, those held in jail are set up to fail, even if they are innocent of the charge.”

This is why there has been another important trend in the lifetimes of current traditional-aged college students: Since the 1990s, there has been a growing body of research and formal reports supporting the elimination of current money bail practices.

“Jail ‘n’ Bail” or “Luxury Lock-Up”

As a white, cis female, middle-class, person from a family with university education, I’m the beneficiary of this inequitable system.  As it becomes increasingly hard to get into the university at which I work, my community is becoming more and more removed from the negative aspects of the criminal justice system and prison industrial complex.  This happens even though we are located in a state with an above-national-average rates of nonviolent crime and correctional supervision (National Institute of Corrections).

So, as I encounter Jail ‘n’ Bail fundraisers on campus, I have reason to doubt that the organizers or the participants are thinking about the issues I described above.

We’re also likely not thinking about the over 20,000 adults in our state currently in jail, 2/3 of whom are awaiting trial to defend themselves.

One in 25 adults in our state is under correctional supervision.  Those on parole often need to find employment or enter school as conditions to stay out of prison. We’re likely not thinking about how these people are our classmates and colleagues and the people they love.

I can stand in a homemade cage asking people to give me “bail money” thinking only of my intent to raise money for an organization I value. That same action, though, trivializes the very real injustices people are facing through the bail system, the socioeconomic and race inequalities within it, and the past traumas I’m bringing up in people walking by trying to go about a school- or work-day.

Making a Change

I think that the common fundraising practice of “Jail ‘n’ Bail” is well-intended but misguided and, more important, not aligned with the values of institutions committed to inclusion, equality, and equity.

Previously, institutions have identified and addressed issues of race, gender, and safety in “date auction” fundraisers.  A growing number of higher education institutions are educating about these to discourage or eliminate “date auctions” on their campus.

On my campus, a growing number of students and staff are coming together to similarly educate about the issues in “jail ‘n’ bail.” I’m thankfully connecting in with colleagues around the country who are doing the same and learning about the inspiring work of activists working to fix the systemic problems described above.

Doing so has a great side effect. In minimizing insensitive and retraumatizing practices, organizers can be more successful at their true intention: Raising money to support causes they care about.

Rebecca Lehman is Program Coordinator for the University of Cincinnati Racial Awareness Program.  This programming area within the UC Office of Student Activities & Leadership Development provides social justice education, inclusive leadership development, and nonviolent activism training to the campus and community.

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