America Is Waking Up to the Injustice of Cash Bail

America Is Waking Up to the Injustice of Cash Bail

America Is Waking Up to the Injustice of Cash Bail

Seventy percent of people in jail haven’t been convicted of a crime. They just can’t afford bail.


On any given morning, some 20 people in orange jumpsuits sit in a pen in a courtroom at the Orleans Parish Criminal District Court in New Orleans, Louisiana. Most rest their handcuffed wrists in their laps; a chain connects the cuffs to shackles around their waists and ankles. They’ve been arrested for allegedly committing a range of offenses, from possessing drugs to stealing a girlfriend’s car to strangling a domestic partner. But at this point, none of these people have been formally charged with a crime, let alone convicted of one. As far as the law is concerned, they’re innocent.

As they make their appearance before Magistrate Judge Harry Cantrell, each defendant gets approximately three minutes to meet with a public defender, if they’re found poor enough to need one, and explain why the charges they’re facing should be dismissed or, barring that, why their bail should be low. This meeting takes place in a Plexiglas booth that resembles a bank teller’s window, with the public defender, who serves every indigent person in court that day—in New Orleans, over 85 percent of criminal defendants are represented by a government-appointed lawyer— separated from her clients by a wall of clear plastic.

As if calling out orders at a deli counter, Judge Cantrell reads through the case numbers one by one. The defendants aren’t allowed to come out of the pen and speak for themselves when their case comes up. Instead, after the district attorney reads through the police report and makes his argument for probable cause, it’s up to the public defender to try to get the case thrown out, ask for a reasonable bail, or argue that the defendant should be released without having to pay.

What constitutes reasonable bail is entirely at Judge Cantrell’s discretion. The man who supposedly threatened to kill his brother, even though his brother wasn’t the one who called the police? Cantrell sets a $2,500 bail. The young man accused of having methamphetamine, prescription drugs, and drug paraphernalia in his backpack? Twenty-five hundred dollars for each count, despite the public defender’s request that he simply be released. Cantrell sets a $10,000 bail for a man accused of threatening people with some sort of shiny object—and whose only income is a monthly $700 disability check. A 12th grader hauled in by police for firing a gun, on the basis of seemingly sketchy evidence, receives a $30,000 bail despite having no prior arrests. When the public defender argues that one particular $10,000 bail is excessive, Cantrell responds simply, “Your objection is noted.” When a defendant tries to speak on his own behalf, the judge instructs him, “Sir, don’t say anything.” Each person’s case takes less than five minutes. Then the court’s business moves on.

Cantrell has acknowledged that he refuses to set bail lower than $2,500, no matter the facts of a case. “We don’t go any lower than $2,500 in this court,” he told one defense attorney in 2016. When attorneys object to this practice, Cantrell sometimes threatens to hold them in contempt of court—for which they could serve jail time themselves. In 2015, 87 percent of defendants in Orleans Parish Criminal District Court had to post bail in order to be released. Of the defendants who could afford to post bail, 97 percent used a bail bondsman. New Orleans bondsmen earned $4.7 million in payments from defendants that year.

Brian Gisclair, a shy man with the deep tan of someone who works outside, found himself in Cantrell’s courtroom on June 20. He had been searching for a new job ever since he was laid off in February, and that same day he was scheduled to interview for a position as a maintenance man at an apartment complex. The day before, New Orleans police had stopped a car in which he was a passenger. Officers claimed that they saw a passenger in the car do a drug deal and that Gisclair “exited the vehicle…and discarded a small plastic bag containing a white rocklike substance.” He was arrested for felony possession of cocaine.

Kenneth Barnes, Gisclair’s public defender, told Judge Cantrell that setting bail wasn’t necessary because his client had no prior convictions for violent crime, wasn’t a threat to the community, and would almost certainly come back to court. Barnes even mentioned the job interview that Gisclair had scheduled for that day.

But without asking whether Gisclair could afford it, Cantrell slapped him with a $2,500 bail. In most courtrooms, Gisclair would have had two options for getting his liberty back: either scrape together all $2,500 on the spot and give it to the court as a deposit (or “cash bond”) that would be refunded in full once he came back for his hearing; or have a friend or family member go to a bail bondsman and put down 12 to 13 percent of the amount—money they would never see again—so that the bondsman would bail him out. But Cantrell refuses to allow the first of these—“I’ve never set a cash bond,” he declared in open court in 2016—further limiting Gisclair’s options. Gisclair couldn’t afford to use a bondsman, nor did he have anyone who could loan him the money. So he sat in the Orleans Parish Prison jail for about 40 days.

When Gisclair speaks of his experience, a nervous smile darts across his face. “I didn’t realize that I would be in there that long for something so small,” he says. “My sense was telling me I was going to get out one of the first couple days I was in there. But after about the first week went by, I realized that wasn’t happening.” For the first few weeks, Gisclair didn’t have any information about what was happening in his case or even the comfort of talking to his fiancée and three kids—no one had enough money to accept his calls from jail, which can cost nearly $5 for 15 minutes.

The days he went to court weren’t any better. Although the jail is down the block from the courthouse, inmates are driven over on a bus. For two days in a row, Gisclair waited on the bus, shackled, for his case to be called, but it never was. His fiancée drove 20 minutes each way three times to be there for his hearing. On the third day, he appeared in court and was told he’d be released.

Once out of jail, Gisclair called the employer with whom he’d had that interview scheduled—but after waiting a week to hear from him, Gisclair learned, the employer had hired someone else. So now he’s back to temporary work, trying to dig out of the hole created by spending nearly six weeks of his life in jail. “I’m getting there,” he says. “It’s harder to catch up than it would have been if I would have been out and just keep things flowing.”

On June 27, Gisclair and another plaintiff who couldn’t afford bail filed a class-action lawsuit against Judge Cantrell, claiming that his use of cash bail violates arrestees’ constitutional rights to due process and equal protection under the 14th Amendment. The lawsuit argues that “the money-based orders of post-arrest release that he imposes constitute de facto orders of pretrial detention for those unable to pay.” Also troubling is the fact that Cantrell—like virtually everyone else in the New Orleans criminal-justice system—benefits from the bail amounts he sets. Louisiana law diverts a small percentage of every bail bond contracted with a bondsman back to the budgets of the people in charge: to the court, the sheriff, the district attorney, even the public defenders. The Orleans Parish Criminal District Court rakes in about $1 million a year from this kickback. This arrangement, the lawsuit argues, is “an institutional financial conflict of interest.”

What happens in Judge Cantrell’s courtroom isn’t unusual. Nearly everywhere in the country, when a person is arrested, he’s taken to a local jail and then appears before a judge, who determines whether charges will be brought against him and, if so, sets the terms of his release. Most of the time, that entails a price: For a felony, the typical amount is $10,000. If a person can afford to pay the full amount, he’ll be released immediately and receive that money back from the court if he shows up for subsequent hearings. But 44 percent of Americans would struggle to cover a $400 emergency. For those without resources, the path to freedom lies with a bondsman, who typically charges about 10 percent of the full bail amount to act as the guarantor or surety for the rest. If the defendant can’t afford the bondsman’s fee up front, many bond companies will set up an installment plan and charge interest. That money will never be refunded to the defendant, no matter how his case is resolved. Bondsmen, however, don’t have to pay the court anything when they get a client released: They simply promise to ensure that he will show up in court for later hearings. If the client fails to do so, the bondsman must pay the bail in full, but in practice bondsmen usually crack down on whoever signed the bond—family or friends, in most cases—and force them to pay it instead. In most states, the bail industry has successfully pushed laws that make it very difficult for courts to get full bail amounts from bondsmen. Anyone who can’t afford to post bail or pay the bondsman will, like Gisclair, sit in jail until the district attorney makes a decision about whether to go forward with the charges. In New Orleans, that is on average a month for a misdemeanor; for a felony, the average is nearly four months.

In the Orleans Parish Prison, most of the inmates haven’t been convicted of a crime; they are there awaiting trial. About a third of these people languish behind bars because they can’t afford bail. Nationally, arrestees make up 70 percent of the jail population—pretrial detention is a major reason why the United States has the highest incarceration rate in the world. Nearly all of the growth in our jail population over the past 30 years is due to the detention of those not yet convicted of any crime. The number of Americans sitting in jail without a conviction is larger than most other countries’ entire incarcerated population.

Our willingness to lock up legally innocent people has huge—and often dire—consequences for those who are arrested. Jail keeps them from their work and family responsibilities, which in turn leads to missing rent and car payments. Those who end up detained, after all, have median incomes that put them in the poorest one-third of the country. Missing even a few days of work can be catastrophic. “The negative impact of jail starts to accrue after the first 24 hours, and it’s really bad by the third day,” says Cherise Fanno Burdeen, CEO of the Pretrial Justice Institute.

And the pernicious effects of being jailed don’t stop there. Those who are detained before trial are far more likely to plead guilty—a desperate attempt to regain their freedom, even if temporarily—and end up being sentenced to serve time. Wilkeitha Washington, known by her friends as Keedy, has a gregarious demeanor that doesn’t fade when she recounts her time in the Orleans Parish jail. But the pain she’s experienced is still evident. After she was arrested for cocaine possession, her bail was set at $5,500—more than she could pay, so Washington sat in jail for weeks. But “jail” is hardly the right word to describe the facilities. The inmates were housed in outdoor tents with scarcely any protection from the elements. “Mosquito bites, rats, roaches…. Anything could bite us,” she recalls. “A dog don’t like to be in a cage, so just picture a human being in a cage.” When Washington had to decide whether to plead innocent and take her case to trial or plead guilty and get out of jail then and there, she chose the latter. “I know if I really try to fight this, I could probably win,” she says. But by giving up, she was guaranteed to go home and return to her four children. Washington got out of jail, but she later went back behind bars to serve out her sentence.

Money bail dates back to medieval England. Those accused of crimes were allowed to go free so long as a family member or associate promised to act as “surety” to the court on the accused’s behalf. If the accused fled and shirked the payment to the injured that was a typical sentence for most crimes, the surety would be responsible for making the restitution instead. From its earliest days as a British colony, the United States followed English bail laws.

America’s commercial bail-bond industry developed out of the reality that few people on the frontier could act as sureties. But the intent was the same. “For literally centuries, the only purpose of bail was to ensure a person’s return to court,” says Insha Rahman, project director at the Vera Institute. Then the crime waves of the 1970s sparked a nationwide obsession with law and order in the 1980s, and the rationale for bail shifted to detaining people who could pose a risk to public safety. That approach was solidified with a 1987 Supreme Court decision that upheld the Bail Reform Act of 1984, which allowed courts to consider public safety when setting the terms of release.

Bail amounts started to swell, meaning that more people were being detained for an inability to pay and more were pushed into the arms of the bail-bond industry. Yet nearly anyone with the funds, dangerous or not, could still put up the money to secure their freedom. In 2009, Telly Hankton, whom New Orleans police called the most dangerous criminal in the city, was given a $1 million bail for a murder charge. Hankton got a bond and secured his release—and while he was out of jail, he gunned down a rival.

Bail-bond companies can set nearly any condition on a client until the case is resolved, from daily check-ins to drug tests, without facing much regulation. And they often tack on additional costs. A lawsuit filed in June against Blair’s Bail Bonds—owned by Blair Boutte, one of the most politically well-connected bondsmen in New Orleans—accused the company of charging hundreds of dollars in extra fees and requiring clients to wear ankle monitors. The plaintiff was allegedly made to wear such a monitor, charged $10 a day for it, and then kidnapped by bondsmen in order to extort money from him and his mother.

If a client refuses any of these terms or misses a payment, the bondsman can threaten to forfeit the bail, which could land the client back in jail. Even if they don’t go this route, bondsmen will often make harassing phone calls and eventually turn the sum owed over to debt collectors.

The bail-bond industry insists that its services are necessary to ensure that people return for their court appearance. But studies haven’t found a clear correlation between appearance rates and being released on bond versus being released on one’s own recognizance (that is, allowing a defendant to go free with a promise to return to court and obey the law in the interim). And bondsmen aren’t responsible for assessing someone’s risk to public safety when they decide to bail him out; nor must they ensure that the client abides by the law after being released. “There is no standardized practice for what is good pretrial supervision,” Rahman says. “We’re letting for-profit companies do a job that is probably better the responsibility of the state.” The United States is one of just two countries in the world that allow a for-profit bail industry. (The other is the Philippines.)”The fact that we have a show called Dog the Bounty Hunter“—a reality-TV series about a man who tracks down people who owe bondsmen—“is a uniquely American phenomenon,” Rahman points out.

Bald, with a thin salt-and-pepper mustache, Alfred Marshall is an organizer at Stand With Dignity, an organization that champions economic opportunities for New Orleans’s black residents. In that role, he’s become deeply familiar with the world of bail bondsmen; as we drive around the predominantly black Central City neighborhood, nearly everyone that Marshall greets has their own story of being bailed out. “All our members is affected by this,” he tells me. Bail disrupted Marshall’s own life last year, when his brother was arrested. The judge set his brother’s bail at $50,000. Though Marshall had some money saved, he had nothing like that sum. He couldn’t even afford the $6,300 that a bail bondsman wanted to get his brother out. “I had to use all of my resources I had in the bank; I had to go to friends, borrow from them,” Marshall says. Even so, he was able to piece together only $4,200, and agreed to pay the bondsman $500 a month until the remainder was covered.

Marshall thought he could keep up his end of the bargain if his brother went back to work and the two split the monthly cost. But his brother’s employer found out about the assault charge and fired him, and Marshall stopped making payments. Two months into their ordeal, the charges against his brother were dropped. But that didn’t cancel Marshall’s debt: He still owed in excess of $2,000. The bail bondsman threatened to sue him for the money owed, garnish his wages, even have his brother thrown back in jail—all of which is legal. “What you get from them is constant phone calls, threatening calls,” Marshall says. “They persistent, they persistent, they persistent.”

Bail bondsmen may look like a diverse group of small-business owners, but almost all are underwritten by nine large insurance companies, including Japan’s Tokio Marine America, Canada’s Fairfax Financial Holdings, and the Bermuda-incorporated Randall & Quilter Investment. Given how rarely bondsmen have to pay the courts, it’s an incredibly low-risk business.

The kind of money that Marshall and his brother represent to the bail-bond industry—which rakes in $2 billion annually—has made it a vocal opponent of reform. “[T]his is the direst time our industry has ever faced,” wrote Beth Chapman, president of the Professional Bail Agents of the United States (and Dog the Bounty Hunter’s wife), in her July newsletter to members. “We can no longer be reactive in these fights…. [I]f we work together, we can beat this anti-bail wave that is crossing our country.” The bail industry spent a total of $1.7 million in 10 states—all of which had active bail-reform campaigns—during election cycles from 2010 to 2016. The American Bail Coalition has close ties to the American Legislative Exchange Council, a conservative group that disseminates model legislation, including pro-bail-industry laws, to state legislatures.

In New Orleans, the industry is deeply connected to politics. Prominent local figures like Blair Boutte can mobilize voters. Flyers for mayoral and City Council candidates litter a table just inside Boutte’s office. Judges—who are elected in Louisiana—rely on industry money for their campaigns. Those same judges set the bail amounts that their donors rely on to turn a profit.

The injustice of cash bail has struck the country in waves over the years. In the 1960s, Attorney General Robert F. Kennedy and the Vera Institute worked to increase the number of people released on their own recognizance. Four states had essentially banned the use of bondsmen by the 1970s. But the bail-bond industry fought back hard. The crime waves of the ’70s largely pushed reform off the radar, and, for the most part, bail practices worsened.

Then, in 1992, the District of Columbia passed the Bail Reform Act, which effectively ended cash bail. In recent years, the pace of change has picked up. In 2011, Kentucky directed judges to release all defendants who had received low-risk scores based on an assessment of their criminal records, pending charges, and prior failures to appear in court. In 2014, New Jersey passed legislation that replaces cash bail with a risk assessment that allows defendants to be released on their own recognizance unless they are deemed a safety risk. Six months after the measure took effect, preliminary data showed that the share of people sitting in jails awaiting trial fell by nearly 33 percent compared to two years earlier. Connecticut passed similar reforms earlier this year.

Even as New Orleans serves as an example of how twisted the bail system is, it has also become a champion of reform. In January, the City Council passed an ordinance eliminating money bail for most municipal-level offenses—misdemeanor charges like disturbing the peace or public intoxication. Now, 29 charges automatically result in a defendant’s being released without having to post bail. For more serious offenses, such as battery or domestic violence, a defendant is always held in jail until a court hearing. These reform efforts began in 2015, and they involved months of educating local lawmakers about the issue. “Very few members of our City Council had a criminal background,” says Nia Weeks, director of policy and advocacy at community-based nonprofit Women With a Vision. “They didn’t have the proximity of what it means to be somebody maneuvering through the system.” Women With a Vision joined with the ACLU, Vera, and the Orleans Parish Prison Reform Coalition and found a champion in Councilwoman Susan Guidry. A compact woman with a quick laugh, Guidry points to her forehead and jokes that she was picked as the lead sponsor of the reform bill because “there’s a sign right here that says ‘sucker.’” After months of agitation, the legislation passed the full council unanimously. It’s too soon to assess the full impact of the ordinance, but to Guidry, one thing is clear: “Is it keeping people out of jail? Yes.”

The ordinance doesn’t touch state-level offenses, the kind that land people in Judge Cantrell’s courtroom. But advocates plan to push for the same reform in other cities and then to secure it at the state level.

The seeds of today’s wave of reform were planted by a Justice Department symposium on pretrial detention in 2011, which shined a federal spotlight on the issue 50 years after the first national conference on the topic, in 1964. But it took the stories of people like Kalief Browder, a teenager who spent three years in New York City’s Rikers Island jail because his family couldn’t afford his $3,000 bail, and who later took his own life, and Sandra Bland, who was taken into custody in Texas after being pulled over for failure to signal and couldn’t afford bail, and who hanged herself while in jail, to illuminate the horrors of the bail system.

Recently, lawsuits challenging money bail have spread across the country. Many of the cases have been spearheaded by Alec Karakatsanis, who worked as a public defender for four and a half years before focusing on fighting back against what he calls mass “human caging.” He brought his first money-bail case, against Clanton, Alabama, in early 2015. The organizations that Karakatsanis works with have filed at least a dozen suits challenging bail, with 10 already settled in their favor. While Karakatsanis argues that the impact has been limited, there have been victories. After he filed a class-action lawsuit against Cook County, Illinois, the county’s chief judge issued an order that eliminated the practice of setting bail amounts so high that people end up in jail.

Organizations whose members have firsthand experience of bail are also driving reform efforts, in part by establishing community bail funds. In 2007, the Bronx Freedom Fund started posting bail for people in Bronx criminal court; when a defendant shows up for his court date and the court returns the money to the fund, it can pay another person’s bail. After seven people were arrested at a vigil for a black 17-year-old killed by police in 2014, Sharlyn Grace and other activists founded the Chicago Community Bond Fund. So far, the fund has bailed out 95 people. Grace cautions that the fund functions as a Band-Aid on a larger wound, so her group also pushes for systemic change. “We don’t think we should have to exist,” she says. “The level of difference that a bail fund can make is going to be so small compared to the level of the problem.” But bail funds serve as proof that the system is broken. “When a charitable organization pays that bail and [the defendant] appears in court every single time, it’s telling us that this person didn’t need their own money wrapped up in the case to appear in court,” says the Vera Institute’s Rahman. Ninety-seven percent of the Bronx Freedom Fund’s clients attend all required court appearances.

This year brought another innovation: the bailout day. A group of organizations, including Southerners on New Ground, the Movement for Black Lives, and Color of Change, put together a “Momma’s Day Bailout” during which they solicited donations that they used to bail out black mothers and caregivers on Mother’s Day. The organizations tied the event to that holiday because “we as a society value mothers, but these are definitely not the kind of mothers we value,” says Arissa Hall, project manager for the National Bail Fund Network. The group anticipated it would raise enough to bail out 30 people. Instead, it raised more than $1 million and posted bail for over 100 people in 13 different communities. Fueled by that success, the group organized a bailout on Father’s Day for about 30 people, and another in August. The coalition intends to move to a permanent structure that would resemble a national bail fund.

Meanwhile, legislative efforts to get rid of money bail are gathering steam in states as varied as Arizona, California, Nebraska, and Texas. Many of these efforts are bipartisan, and members of Congress on both sides of the aisle have taken notice: Senators Kamala Harris and Rand Paul introduced a bill earlier this year to provide states with grants to reform their bail practices.

No single approach will spell the death of money bail. The justice system is too decentralized for such a blanket fix, and since Donald Trump has taken office, some things have moved backward: Cherise Fanno Burdeen reports that the Department of Justice told her that the Pretrial Justice Institute could no longer use DOJ grant money for their Pretrial Justice Working Group. But the movement is stronger than it’s ever been. “I’ve been doing criminal-justice work for the last 15 years, and I’ve never seen this kind of attention,” Rahman says.

In the meantime, people like Brian Gisclair bear the costs. Asked what the biggest consequences of his time in jail were, he answers: “Missing out on time with the kids, other job opportunities that would have came. I don’t want other people to have to go through that.” That’s why he joined the lawsuit against Cantrell. “It just seems to me they want you stuck in there,” he says. “Seems like it’s all about money to them.”

Editor’s Note: When published, this article claimed that the charge of felony possession of cocaine against Brian Gisclair had been dropped. In fact, that case is still pending. The text has been corrected.

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