I have to admit, even though I’m quite interested in social issues, justice and law, I was quite ignorant about how the bail system actually worked. I’ve gleaned a general idea from books and movies but it wasn’t until recently that I found out that this system is flawed and that there have been calls for changing it. Some might think that this kind of thing isn’t really important, as legal reforms really are only there to protect criminals who are doing bad things, right? If you keep your nose clean and stay out of trouble, then you can just go on your merry way. However, this might be one of those times where we shouldn’t be ignoring how this process affects others on a daily basis, as it is both ruining lives and livelihoods, and likely costing you money. When money, or access to it, is involved with the legal system and your path through it changes if you do or don’t have the cash, then this is kind of a big deal. People shouldn’t get different kinds of justice based on income, and so this is definitely an area where change may be a really good thing.
So first off, what is bail exactly? It depends on where you live in the world (in some countries money isn’t necessarily part of it and it is just a term used for the restrictions set on a person pending trial) but in the US and Canada it generally is a sum of money paid to ensure that an individual will show up for all their court dates and can continue their life outside prison until guilt is proven and sentencing occurs. The amount can be set from anywhere from a few dollars to thousands, and is generally up to a judge to determine. At the end of the trial, the money is returned. If you really need this money back then the incentive to go through with the trial is high, but the truth of the matter is that not a lot of people have the extra income to pay these kinds of fees. We might focus on how this would be a barrier for the working poor or homeless, but there is a large portion of regular society that still live paycheck to paycheck, and couldn’t just cough up a few hundred dollars on demand, let alone thousands. In the end, being asked to pay for freedom before sentencing has little to do with justice.
Having the money come back to you at the end of things makes it seem that this is a fair process, but what if you can’t afford the bail set? In these cases, a person is often put in jail, even though they have not been proven guilty. They will stay until their court date, which could take days, weeks or even months, for charges that sometimes wouldn’t result in jail time anyway. This forces people without access to money into a place where they are confined with criminals, until they can prove their innocence and get their freedom, which is a backward way for justice to operate. The longer they wait in jail the more likely they will lose their jobs, homes, family and social connections, and be both traumatized and stigmatized by the process.
Although jail and prison can be used interchangeably in most parts of the world, in North America jail is generally where they hold people for a short term sentence, and prison is where long term sentences by people convicted of crimes generally go. People who are held for sentencing would be held in jails, and that may make it sound like it might not be as bad, but there are also people who are convicted of crimes and serving lower sentences there too. This means jail can be an exceptionally stressful and dangerous place, and compounded with the reasons above, many will actually plead guilty to charges to speed up the process to freedom because the price to prove their innocence is simply too great. This means innocent people may prefer to get a criminal record than try to to fight, particularly if they can’t afford good legal help anyway. And once you have one charge, the possibility of being suspected for other nefarious deeds by the law if you are in the vicinity of a crime isn’t your only problem, it also can affect personal lives, social interactions within your community and your ability to obtain a good paying job, the last of which just feeds the cycle of poverty and makes it that much harder to get out of.
The other thing to consider, is that while someone is sitting around in jail, they aren’t able to work and pay taxes, so the costs of confinement are passed along to taxpayers in order to keep them there. If we had a better system in place, we could save tax payers from covering costs required for people currently in jail waiting to fight minor charges (and I’m not talking about the bad ones we all revile, I’m talking about things like jay walking, trespassing, shoplifting, public intoxication, and various other low level offenses that generally wouldn’t result in jail time anyway) and use this money for better supports for other issues.
The good news is that there are foundations that help people without means pay for bail and related expenses to keep them out of jail. One such program is The Bail Project, which is a national non-profit organization out of California that is helping people in need. What they do, through donations, is find people to pay bail for and when the trial is over the money that is returned simply goes on to bail out someone else. Now you might think that without the incentive of getting the money back people would just skip the whole process anyway, but this organization is showing that this is not the case with about 90% of people they work with following through. People often are invested in getting charges dropped if they can, instead of getting a record, so most will try. Interesting to note is that the Bronx Freedom Fund, which was the organizations precursor, claimed that less than 50% of their clients who did go to trial actually got charges and less than 2% actually got jail time. This compares with 90% of people who are held in jail who can’t pay for bail eventually pleading guilty just so they can go home.
As a charity, I think this work is important, and this issue needs to be more widely known. There was an estimated 15,000 people being held for pretrial in Canada in 2017 according to the John Howard society. When you consider that there was less than 10,000 people being held in provincial jails with sentences of two years or less and 14,000 on charges greater than two years in federal prison at the same time, there were actually more people in jail who are still presumed innocent than guilty in either of these two systems. For the US this number becomes much larger with an estimated 500,000 people being held on an average day who have neither been convicted or sentenced.
What can you do? Aside from donating to charities, I think the most important thing you can do is be informed about what is happening in these systems in the country where you live, and once you know, get the word out about this issue. If you live in the states, the Bail Project is hiring and accepting volunteers, which is a direct way that people can make change. So, spread the word and let people know how this system works! The more people understand the more we can get something done about it. And if you have any other info, experiences or stories about bail, I’d love to hear about it in the comments below!
For more information on this topic here’s a few video’s from the Bail Projects website: