Victoria Ransom
Picture this: a prisoner is sitting in a cell. It’s probably crowded and uncomfortable. They are separated from their family and friends, everyone they love. They committed a crime and now they’re waiting for their bail bond hearing. After their hearing, they’ll go back to a prison cell because their family can’t afford to pay the bail.
However, maybe another person has committed the exact same crime as the prisoner, but their family is wealthy. They wait until their bail bond hearing, and then pay the bail amount. They get to wait for their trial in the comfort of their own home, with the people they love. In this case, the prisoner is being punished simply because they are poor.
This may seem extreme, but it truly does happen. In May of 2017, Californian senior citizen Kenneth Humphrey was accused of stealing $5 and a bottle of cologne. He was held in San Francisco County Jail for more than 250 days because he was unable to afford his $350,00 bail.
When a person is arrested and booked for a serious crime, they must wait in jail until a bail bond hearing. At the hearing, the judge will set the bail amount. If the person cannot afford the bail amount, they are required to wait in jail until their court date. However, there is another option. If the person who is paying the defendant’s bail chooses, they may hire a bail agent. When the defendant’s friends, family, etc., cannot pay the bail, a bail agent will post the bond, usually charging between 10-15% of the total bail amount. For example, if the bond is $10,000, and the bail agent is charging a 15% premium, the defendant’s friends/family will have to pay the bail agent $1500. The bail agent may also ask for collateral. This may be a house, car, jewelry, or other valuables to provide a guarantee that the defendant will show up for their trial. Once the premium has been paid, and any collateral has been signed over, the bail agent will post the bond and the defendant will be released from jail. This process can take a short time (a few hours), or a long time (several days). After the person has been released, they must come to all court proceedings and meet any conditions set by the bail agent. If the defendant fails to appear in court, the bail agent will have to pay the full bail amount. When this happens, or when the defendant violates the bail conditions, the bail agent will locate the defendant, take them back to jail, and all collateral will be lost. However, ff the defendant is compliant, regardless of whether they are found innocent or guilty, the bond will be exonerated, and they will only have to pay the 10-15% of their bail.
Now that we understand how the system for bail works, we have to dig deeper to find the underlying issues with the bail system. In general, the only people who have or will come into contact with the bail system are people who have been arrested, family/friends of people who have been arrested, lawyers, judges, and bail agents.
When asked about the flaws of the current bail system, Kaitlin Shirley, founder and executive director of InsideLiterature, an organization that teaches literature to inmates in Travis County Jail, said, “The current [bail] system discriminates against low-income individuals. No one should be incarcerated due to poverty. Failure to statistics are also problematic because sometimes FTA is due to a) transportation issues b) having to go to work (either because they’d get fired if they didn’t show up or lose necessary wages) The bail bonds industry is another massive flaw, regardless of whether you appear in court you must pay a certain percentage of bail. For low-income individuals this percentage can be devastating.”
Marilee Ransom, a former U.S. attorney who currently works at the same organization agreed with her: “[Bail] punishes poor people simply because they are poor.” In addition, she pointed out the complexities of the issue: “it’s unconstitutional to simply not have bail, we have to have a system for people to not be incarcerated while they’re waiting for their trial, and we have to have a way to ensure they will come for their trial. However, we have to find a system that is fair to everybody.” Additionally, she said that she has seen alternatives for the bail system, but they were also flawed in different ways. “We have to have a way of evaluating people and their likelihood to return for trial other than just money. All of the other systems I’ve seen are also flawed, but in different ways.”
Dr. Shirley pointed out a few options. “Cash bail must be eliminated. The bail bonds industry must be eliminated. Ideally, we would not incarcerate people pre-trial without just cause (i.e. mitigating a threat to public safety or concerning someone considered a true flight risk).”
So, in Dr. Shirley’s opinion, there wouldn’t be a bail system. There would be no cash bail, which would also eliminate bail agents and bail trials. The only time people would be incarcerated pre-trial would be when they were considered a genuine threat to public safety or at flight-risk. But, how do we decide that a person is a flight-risk?
One obvious solution would be criminal history. However, this doesn’t necessarily guarantee that a person would flee their trial. Additionally, if the person does not have any criminal record, how would one decide that person’s bail? At this point, it becomes so easy for a person to be judged based on their physical appearance, rather than their actual likelihood of fleeing their trial. If we eliminate cash bail and pretrial incarceration, although the system would no longer be discriminating against low-income individuals, it would still be judging people based on arbitrary matters.
This issue is one that will require a lot of innovation in order to establish a better system. However, it is something that affects so many people in very negative ways so action must be taken.
We can never achieve fairness, albeit we can try. Though we will not reach the epitome of anything, there is always something we can improve.
Kenneth Humphrey was held in jail for over 250 days. According to a study done by the APA (American Psychological Association) in 2014, “While at least half of prisoners have some mental health concerns, about 10 percent to 25 percent of U.S. prisoners suffer from serious mental illnesses, such as major affective disorders or schizophrenia, the report finds. That compares with an average rate of about 5 percent for serious mental illness in the U.S. population in general. Dependence on drugs, alcohol or both is also common among prisoners.” Being in jail for 250 days could dramatically affect a person’s mental health.
Imagine Kenneth Humphrey in a jail cell. It’s cold. He’s alone. He knows that he wouldn’t be there if he had more money. Maybe he’s become mentally unstable during his time in jail. Nevertheless, there is absolutely nothing he can do about it.
Works Cited
Collier, Lorna. “Incarceration Nation.” Monitor on Psychology, American Psychological Association, 2014, www.apa.org/monitor/2014/10/incarceration.
In Re Humphrey. appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=2245014&doc_no=S247278&request_token=NiIwLSIkTkw5W1BVSCM9VEpJUEQ0UDxTJyMuTz1RMCAgCg%3D%3D.
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