An interesting thing we are taught about living in the United States when we are growing up is that America is the “land of the free.” Yet, the US has the largest prison population in the world, over two million, with the second largest being China.¹ “Innocent until proven guilty,” seems devoid of reality when on any given day there are about 500,000 people sitting in jail cells without having been convicted of a crime.² Why do people in pretrial detention now make up more than 75% of America’s jail population? What happened to due process? Why have we normalized the blatant violation of human rights that is the cash bail bond system?³

Specifics regarding bail laws vary from state to state. However, upon arrest, there is a typical process that is followed. When a person is arrested they are entitled to a “pretrial release” except in a few rare cases. This means, a judge can release a pretrial defendant on a promise to return to court with conditions attached. Such as electronic monitoring, drug testing, pretrial supervision, or by provision of bail. Poor pretrial defendants who have no money to post their own bail, often resort to the alternative route getting help from a private bail bond company.⁴ A bail bond company is a for-profit business, with no ties to the legal systems per say. therefore they have no legal obligation to assist any client and ensure they show up for their court date. The relationship is purely business.

Obtaining a private bail bond is a method where a pretrial defendant forms an agreement with a bail bonds agent. The defendant can be released on an unsecured bond, which is lent to the borrower because of a credit score or a secure bond, where the borrower would need to put up collateral. Sometimes the defendant can obtain pretrial release by paying the court ten percent of the total bond amount directly to the courts; where they would be refunded when they make their court appearance. However, most cases result in a defendant seeking a bail bonds agent because they cannot afford the bond amount set by the court.⁵ If the defendant cannot afford the bail personally or through a bondsman, they will remain incarcerated until their court date. These people are presumed as innocent under the law but will suffer the tolls of incarceration simply because they do not have enough money to secure their freedom.⁶

Bill Peyser, a 73-year-old cab driver, was one of the many victims of this system. In 2017, Peyser had become frustrated with some noisy younger neighbors. After a sleepless night, which led to a missed day of work, Peyser confronted the neighbors with a .22-caliber handgun. The men saw Peyser through the peephole, and instead of answering the door, they called the police. Nobody was hurt because of the lack of confrontation. Nonetheless, the police arrested Peyser and charged him with attempted murder, two counts of assault with a semi-automatic firearm, and discharging a firearm at an inhabited dwelling.⁷ Peyser was prepared to plead guilty to what he had done, which was only brandishing a weapon, but the police refused to believe that it was a passion-fueled incident and that he did not plan to harm his neighbors. Despite being classified as indigent, Peyser’s bail was set at $25,000. Even when the attempted murder charge was dropped, the bail remained the same.⁸

Peyser and his defense attorneys appealed to multiple judges for a bail reduction, but were unsuccessful. Although Peyser was a 73 year old man, with no criminal record, and was not an active threat to society, Peyser was jailed for six months while waiting for his trial because of his inability to make bail. Peyser faced the possibility of losing his taxi medallion and/or his rent-controlled apartment. At his trial, the jury watched the security footage, deliberated and found Peyser not guilty on all counts. One juror noted, “It looked like an old man doing something stupid.” Because it was. If Peyser had enough money to make bail, he would have been treated completely different. “If you pay the bail, you’re a regular citizen. If you don’t pay the bail, you’re treated as guilty until proven innocent.”⁹ This was a clear case of police misinterpretation, in which Peyser paid the emotional price of incarceration before being charged with a crime.

Peyser was pronounced not guilty but his incarceration created irreparable damage. Peyser lost his taxi medallion and his work. His landlord began proceedings to evict him but he was eventually able to convince the landlord to let him stay. Imagine if he were not so lucky.¹⁰ Imagine if Peyser had children with no other caregiver, where would they go during his time of incarceration? Imagine if something like a pandemic interrupted the legal process and his trial date was pushed back many more months, or he had already lost his job prior to being arrested. Imagine being a 73 year-old man, who had never been in trouble before, being held in jail without a conviction for six months or a year. What if you got arrested for a crime you did not commit? Could you, or your family post bail with no interruption to your lives? The majority of Americans cannot.

Bill Peyser’s case is an example of how even a small amount of time incarcerated can cause huge disruptions for an INNOCENT defendant. In fact, experts have determined that three days in jail is all it takes to cause serious problems in one’s life.¹¹ Consider that many of us could not call our jobs and tell them that we would be missing work because we are being held in jail waiting for our trial. Our jobs, like many, would be gone before we even got out. Additionally, there are some instances where defendants are held in pretrial detention even though their charges would not include jail time.

Another example of the toll incarceration has on defendants is Kalief Browder. Kalief Browder was 16 years old when he was wrongfully accused of stealing a backpack and was arrested. Browder could not afford bail and remained in jail for three years in pretrial detention at Rikers Island, a notoriously violent prison. Throughout these three years, Browder was beaten by inmates and guards. Browder attempted suicide several times, and was placed in solitary confinement for two years. Browder suffered from PTSD, depression and anxiety that stayed with him even after he was freed. Two years after being released from Rikers Island, he ended his life by hanging himself.¹² This is what happens when you send an innocent child to jail for no reason other than being too poor.

An important thing to take away from Browder’s case was the amount of times he was presented with a plea bargain; and he is not alone. A plea bargain is a negotiation in which the defendant pleas guilty to a lesser crime for a shorter sentence than what they would face if they were found guilty at trial. People in jail for pretrial detention are more likely to accept these plea bargains and face an unjust and/or wrongful conviction, just for the possibility of going home sooner.¹³ However, that release comes with the price of being convicted of a crime (or felony) for the rest of their lives. Additionally, people of color have higher stakes when it comes to the criminal justice system. It is not a simple choice of facing jail time and/or legal battles but, of continuing a legacy of racism and economic disenfranchisement.¹⁴ With its disproportionate effect on minorities, from a societal perspective, the cash bail system reproduces institutional racism in the United States’ criminal justice system.¹⁵ If you were Kalief Browder, would you have pleaded guilty to a crime you did not commit in an effort to spend a shorter jail sentence? Or would you have believed that justice would have to recognize you were not guilty and let you go home free soon?

In addition to the common injustices described above, we are living in very trying and unusual times due to the COVID-19 pandemic. This pandemic has amplified many of the already failing systems the United States has in place; including our prison and jail systems. A new report from the Texas LBJ School of Public affairs has revealed a number of devastating statistics. Some being that 58% of the people who died from COVID in Texas prisons were eligible for parole at the time of their death, 21 people died in prison with less than two years remaining on their sentence and 80% of people who died from COVID-19 in jail had not been convicted of a crime. ¹⁶ Many of us have luxuries during this pandemic that detainees do not. Such as a home, adequate food, medical attention, and family members to let us know that we will get through this. Now, more than ever, we must consider what it would be like to be in another person’s shoes.

In addition to the toll incarceration takes on detainees and communities, the pretrial detention system costs American taxpayers around $14 billion each year. At the same time, the $2 billion bail industry exploits and extracts money from communities that have the fewest resources. For example, many states have resulted in slashing budgets from other programs, such as higher education, in order to afford the cost of unnecessary incarcerations that result from cash bail system.¹⁷ Considering the impact on families, communities, and social services, the total cost of this system is approximately $140 billion each year.¹⁸ Most Americans agree that we should take action to change the current pretrial system. However, there is a lack of shared vision when it comes to what that “change” might look like. Although changes in the criminal justice system resulted from both Peyser’s and Browder’s stories, the work is far from over. Without focus on the larger systemic problems bail systems stem from like institutionalized racism and mass incarceration for profit industries, any reform of the current system risks re-creating the harm and disparities we intend to eliminate. ¹⁹

One approach to combating this system is a revolving bail fund. The Bail Project, Inc. is a non-profit organization that was designed in an effort to combat mass incarceration by disrupting the cash bail system, one person at a time. This organization grew from the Bronx Freedom Fund, which was the country’s first non-profit, revolving bail fund. Since bail is returned at the end of a case, the organization is able to build a sustainable, revolving fund that is supported by donations and can be used several times a year. In addition to paying bail for people in need, they also offer legal assistance and support to ensure court date appearances.²⁰ Some statistics the organization provides are that 95% of people show up to their court dates, 50% of the cases are dismissed and 2% of defendants receive a jail sentence. The Bail Project, Inc. uses a need-focused approach that removes the financial incentives of bail and focuses on releasing pretrial defendants on personal recognizance. For example, the primary purpose of using cash bail is to ensure court appearance. The organization questions their clients regarding any obstacles to court return such as transportation, unstable housing, childcare and/or, health concerns. The organization then develops a support plan to overcome these obstacles using ongoing communication, court notifications, social service and community-based programs.²¹ Thus, debunking the myth that cash bail is effective or needed and restoring the presumption of innocence into the justice system.

Although The Bail Project, Inc. and other non-profits like it are effective, the goal is to eliminate the need for these bail funds at all together. Incarceration should not be the default response to issues regarding poverty and public health and pretrial detention should be the rare and limited exception. Tactics such as decriminalization, non-custodial citations and requiring the least restrictive conditions necessary can make communities stronger by allowing people to remain working, attending school, and caring for their families. ²² Creating solutions to common obstacles to court return, investing in court reminders, improving court scheduling and rescheduling practices and instituting grace periods for nonappearance are all things governments should be doing but are not. Until there is a push within our communities for a change in processes and a prioritization of this crisis, these bail funds are completely necessary.

Pretrial detention contradicts the American values we are taught as children: INNOCENT UNTIL PROVEN GUILTY. Pretrial detention denies basic legal protections and turns due process into punishment and coercion. The current system and its primary focus on incarceration are counter-productive for the community or to individual reformation. It is no secret that jails do not heal; they harm and inflame the circumstances which drive a person into contact with the law in the first place.²³ As a consequence, many individuals and communities are caught in a never-ending cycle of poverty, broken families and crime. Aside from promoting or donating when you can to revolving bail funds, another way to combat this system is by simply having conversations with the people around you. Change starts at home. In this case, like many others, it is our moral duty to spark that change.

“Injustice anywhere is a threat to justice everywhere.” – Martin Luther King Jr., “Letter From a Birmingham Jail”