The use of pretrial detention and money bail has contributed to the 500% explosion in U.S. jail populations over the last forty years. Tonight around 600,000 people will sleep in a local jail, even though over 75%, or about 462,000 people, have not been convicted of any crime. Most are caged, in some cases for periods of months or years, because they are unable to post bail. Others are there because they were deemed a risk to themselves or their communities, often by racially biased risk assessment tools. Still others are there because they were unable to pay a fee or fine imposed by a judge in a criminal or civil proceeding.
People incarcerated pretrial without bail are often held based on presumptions of dangerousness rooted in anti-Blackness, ableism, homophobia, and transphobia, risk assessments that rely on data that is based on – and reinforces – existing racial and economic disparities in policing, employment, and housing, and mandatory detention of undocumented migrants. Once held on bail, people are more likely to plead guilty to avoid long pretrial detention.
Pretrial detention takes a devastating toll on criminalized people and communities, including severe financial hardship; physical, sexual, and other forms of violence in jails and detention centers; denial of necessary health care or treatment; contact with immigration authorities leading to potential detention and deportation; and loss of housing, employment, and child custody.
It also costs communities $38 million dollars a day.
In addition to the financial burdens of bail, criminalized populations are subject to criminal fees and fines, further impoverishing working class, low- and no-income Black people and creating additional risks of incarceration, loss of licenses, asset seizure, and credit and child welfare as a consequence of inability to pay.
Today, the United States is a global leader in caging people. The use of pretrial detention and money bail has contributed to the 500% explosion in U.S. jail and prison populations over the last forty years.
Tonight around 600,000 people will sleep in a local jail. Over 75%, or about 462,000 people, have not been convicted of any crime.
The majority of these people are in cages because they could not afford to pay bail. Others are there because they were deemed a risk to themselves or their communities. Still others are there because they were unable to pay a fee or fine imposed by a judge in a criminal or civil proceeding.
Pretrial detention creates immeasurable harm, including periods of prolonged incarceration, accompanied by physical, sexual, and other forms of violence, such as denial of necessary health care or treatment, and loss of housing, employment, and child custody.
Pretrial detention has been shown to limit the ability of people accused of a crime to fight the charges against them, adversely influence judges and juries, and reduce the chances of a favorable resolution of a case.
Pretrial detention also creates pressure to plead guilty in the hopes of avoiding long periods of incarceration before a case is even heard: 90% of people held pretrial plead guilty to an offense. Pretrial detention also costs us $38 million every day.
Bail is a guarantee (usually in the form of money or property as collateral) required by a judge, magistrate, or bail commissioner as a condition of release from pretrial detention to ensure that a person accused of a crime will return to court to answer the charges against them. If the person is unable to post the bail set, they will be incarcerated until their case comes to trial, or is resolved by a plea or dismissal, in some cases a period of months or years. The U.S. Constitution guarantees that any bail set shall be “reasonable,” and should not result in pretrial detention simply due to inability to pay. However, most jurisdictions do not conduct evaluations to determine whether bails set by judges are “reasonable” for any given individual.
Many factors contribute to unequal bail outcomes for Black people including: judicial bias, where judges believe racial stereotypes that Black people are more dangerous; to centuries of economic discrimination and hardship that make it less likely for Black people be able to afford bail; to prosecutors trumping up charges for Black people.
Judges are 2.4 times more likely to detain Black people than white people who face the same charges. And when judges do set bail, on average it is $7,281 higher for Black people than white people for the same charges. Additionally, Black and Latinx people are twice as likely as white people to remain in jail because they cannot afford to pay their bail.
The burden of posting bail and paying exorbitant fees to bail bonds agencies falls on individuals already struggling to survive.
Low- and no-income people who are arrested spend an average of 23 days in a cage before their day in court, simply because they often cannot afford to pay bail.
For instance, according to a 2010 Human Rights Watch report, bail was set at $1,000 or less in 72.3% of misdemeanor cases in New York. Many defendants still could not post bail, and were incarcerated pretrial as a result. For homeless, no- or low-income people, disabled people, migrants, and people who live paycheck to paycheck, even low bails can pose insurmountable obstacles to release. Even a short stint in jail can have devastating financial and other consequences, including losing a job, shelter bed, home, or having children taken away, regardless of whether a person is ultimately convicted.
Women bear a disproportionate burden of paying bail for themselves and their family members and loved ones, often sacrificing food and other basic needs, education, and working multiple jobs in order to cover the costs.
Migrants, who may be unable to access employment in formal economies, are subject to higher bonds in immigration proceedings, averaging $8000–$10,000.
In most cases, migrants are required to pay cash up front instead of being able to pay 10% to a bail bond agency in the same way defendants can in criminal proceedings, and only U.S. citizens or lawful permanent residents can post it. Migrants often face significant obstacles to retrieving the funds at the conclusion of their cases: ICE is currently holding over $200 million in bonds posted by migrants, a $57.3 million increase between September 2014 and July 2018. Additionally, migrants may successfully post bond in a criminal case only to be taken into custody for an immigration proceeding and lose the bond posted in the criminal case.
Bail is unnecessary to achieve its stated purpose—to ensure that people return to court to answer charges against them. Study after study shows that most people come back to court whether they pay bail, are released on their own recognizance, or are released with conditions. For example, in Santa Clara County, California, more than 95% of defendants returned to court when they were released on their own recognizance, and in Washington, DC, at least 87% of defendants released pretrial, without bail, make their court dates. Studies show that easily implemented practices such as text reminders and transportation and childcare support dramatically increase the chances that people will be able to return to court.
Bail can also be denied and pretrial detention mandated on the grounds that a person presents a danger to the community. Pretrial detention decisions, including those based on “risk assessment tools” (RATs) and algorithms rely on data that is based on – and reinforces – existing racial and economic disparities in policing, employment, and housing. As a result, use of RATs has discriminatory impacts: Black people accused of a crime are 44% more likely to be denied bail and incarcerated in jail pretrial than white defendants under similar legal circumstances.
Black migrants, homeless and low-income, disabled, and LGBTQ people are particularly likely to be subject to pre-trial detention because they experience high levels of police contact and arrest, structural exclusion from housing and employment, and may be less likely to be able to demonstrate family and community ties. People with mental disabilities and unmet mental health needs are often detained on the grounds that they pose a danger to themselves—even though a jail cell is literally the worst place to be when experiencing a mental health crisis. Disabled people experience high levels of violence and abuse and medical neglect in jails, including torturous use of chemical and physical restraints, physical and sexual violence, and extended solitary confinement, all of which only aggravate conditions that led to contact with the criminal punishment system.
Since the Vision for Black Lives was first released in 2015, many jurisdictions across the country have embarked on bail reform. However, most “reforms” only further entrench the current racist and classist system. Reforms that include risk assessment tools fall short of our demands to drastically decrease the number of people held pretrial and to eliminate racial disparities in the pretrial system. Additionally, even when people are released pretrial, many jurisdictions continue to impose controlling, coercive, costly and often impossible pretrial conditions, including electronic shackling, which simply make people’s homes into jails at their own expense. Still other reforms create for profit pretrial services, where the same companies that have made billions off of the caging of Black people are now administering drug tests and other mandated “services” paid for by people charged with crimes, who are then often forced to choose between supporting their families and paying their pretrial bills.
The Department of Justice investigation into the Ferguson police department prompted by the Ferguson Uprising uncovered the growing practice of funding the operation of the criminal punishment system using funds extracted from people accused of crimes—the majority of whom are low- or no-income and working class people of color, representing yet another form of structural economic oppression and exclusion imposed on Black communities.
According to a 2017 U.S. Commission on Civil Rights report, municipalities that rely heavily on revenue from fines and fees have a higher than average percentage of Black populations, and residents living in the poorest zip codes of a city, who are disproportionately Black, account for the vast majority of traffic infractions. The Commission also noted that 60% of people in the U.S. do not have enough money in savings to cover a $500 emergency. For people who cannot afford to pay for fees and fines imposed in criminal cases, the consequences of criminal punishment debt can impact credit scores, result in the loss of a driver’s license, and lead to incarceration, job loss, and family separation. The consequences of fees and fines persist even when particular offenses are decriminalized where civil penalties are substituted.
Governments aren’t the only ones targeting Black communities for surveillance—wealth is being created for the ruling class from the data and DNA of Black bodies. Artificial intelligence in the form of algorithms increasingly powers decisions that are fundamental to our economic lives: decisions about who gets credit, a job, healthcare, or housing. Incorrectly framed as a neutralizing tool, AI can perpetuate discriminatory outcomes through faulty inputs, faulty conclusions, testing failures, and proxy discrimination. These are primary contributors to the mounting cases of algorithmic injustice—instances where people are excluded from benefits and opportunities, or subjected to unfair pricing, where they would otherwise be protected from intentional discrimination. As disproportionate users of social media and mobile devices, Internet users of color are frequently required to turn our information over to social media sites and mobile apps as a precondition of use. Sites and apps like Facebook and Twitter often capture a great deal of data about our location, contacts, messages, search histories, and more.
Though Black users represent one of their most engaged audiences, these data mining sites fail to protect Black users from censorship, hate speech and third party or law enforcement monitoring on the platform.
Social media companies, among others, store our personal data for commercial purposes and, increasingly, share this information with law enforcement agencies, biometric companies, and the companies responsible for electronic monitors, and the increasingly pervasive trove of surveillance equipment. sexual violence by law enforcement and penal officers, in foster care, and in locked facilities and group homes;
All of these surveillance practices disproportionately impact Black communities, including migrants. They violate the First, Fourth, and Fourteenth Amendment rights of Black, Latinx, Arab, and Muslim people and migrants in the U.S. Without guiding policies, practices, principles, or regulatory parameters that restrain, ban, or place a moratorium on their public and private use, these surveillance technologies supersize the potential for discriminatory policing and criminalization and further erode due process protections under the law. These practices expand the police state and facilitate big profits for a growing surveillance industry—and they use the Internet, potentially the most democratic communications platform the world has ever known, to do it. At the same time, the few technological tools available to protect an individual’s information, like encryption, are under constant attack.
