Bail or jail…What’s wrong with Louisiana’s bail system?

By Marjorie R. Esman
Guest Columnist

Consider the following scenario. Two people are arrested and jailed for the same minor offense. It is each person’s first offense. At their individual bail hearings, the judges set virtually the same bail amounts for both. Person “A” can afford the bail, pays it and is released from jail. Person “B,” however, cannot afford the price of bail. What options are available? “B” could borrow the money from a friend or relative, but chances are “B” will have to use the services of a bail bondsman, with the only other option to remain in jail until the court date arrives, often weeks even months away. Neither “A” nor “B” is dangerous, and neither has been convicted of any crime. Yet one walks away, while the other stays in jail. Something is very wrong with this picture.

As part of a decision to set bail, a judge must consider whether the defendant poses a threat to public safety. If bond is set, that means that the judge has determined that the public is not at risk by having the defendant free while awaiting trial. Bail is not a fine or a punishment. Bail is a way to ensure that the person will return for an assigned court date. Yet someone who can afford bail is released and allowed to move on pending trial, while someone who can’t must sit in jail for weeks, maybe months, awaiting trial. Because of our bail system, jails have now become holding facilities for millions of people who aren’t dangerous and haven’t been convicted of anything.

Like other areas of the criminal justice system, the system of bail has created one set of rules for the “haves” and another set for the “have-nots.” It discriminates against those who can’t afford to buy their way out jail while awaiting an opportunity to refute the charges against them. But the system has led to an expansion of our jail population, simply by locking up people who can’t pay to get out.

In August of this year, the Metropolitan Crime Commission issued a report on the inmate population at Orleans Parish Prison (OPP). Of the 2,163 inmates in OPP, a full 80 percent, or 1,679 individuals, were locked up awaiting trial. Some were charged with violent offenses, but hundreds were awaiting trial on minor and non-violent charges and could have been safely released. They were there not because they were dangerous, but because they were poor. Yet for every person awaiting trial on nonviolent charges, there is a family left behind. There is income lost, housing and jobs lost, at both a human and financial cost to the community. This system simply makes no sense.

In a symposium on pretrial justice last year, Attorney General Eric Holder reported that two-thirds of the people in America’s jails are awaiting trials, at a cost of about $9 billion to taxpayers. Most, he said were non-violent, non-felon offenders, and a disproportionate number of them were poor. “Almost all of them could have been released and supervised in their communities,” he said.

Don’t expect any sympathy from the bail bonding industry though. They want to keep things just as they are. Here’s how it works. When a person goes to a bail bondsman, the bondsman agrees to loan the money, which is usually secured by real estate or something else of value. For this service there is a fee equal to 10 to 15 percent of the bail amount. Whether or not the person is ultimately found guilty, their bail is returned by the court after trial, but the bail bondsman’s fee is non-refundable.

Powerful organizations like the American Bail Coalition—a lobbying group that represents the bail bondsmen, insurance companies and wealthy investors — carry significant sway with the criminal justice system, helping shape policy that ensures its for-profit business model is not interrupted. Between 2002 and 2011 they spent $3.1 million dollars lobbying lawmakers in various states, and drafted a dozen bills that encourage judges to set high bail amounts. These high bails amounts are not necessarily related to the severity of the underlying offense, but they have the consequence of keeping poorer people incarcerated while awaiting trial, and allowing those with greater means to go free.

Because of the potential for abuse and the unfair results, some states have abolished commercial bail bonds. New Jersey just adopted new measures to ensure that dangerous people can be denied bail and those who aren’t risks to public safety can be released without regard to their ability to pay.

The purpose of jail is, first and foremost, to promote public safety. The public is not served by incarcerating people for low-level, nonviolent offenses for which someone with means can post bond and be released. Doing so perpetuates a system that disproportionately punishes the poor (which, in New Orleans, often means African Americans) and allows those with resources to buy their way out.

If we want to improve public safety, we will reserve our jail for only those who pose a risk to the rest of us, and for whom no alternative exists. For the rest, we can and must find alternatives. Incarcerating poor people solely because of their poverty is unfair, unjust, not cost effective, and simply makes no sense.

This article originally published in the November 10, 2014 print edition of The Louisiana Weekly newspaper.