Q & A: Pretrial Incarceration, Bail and Profile Based Risk Assessment in the United States

What is bail?

In common usage, in the United States, bail generally refers to an amount of money, set by courts, that the accused must pay to be released while waiting to go to trial or otherwise resolve their case.  The money is held until the case is resolved, then returned to the person who paid it.

What are judges supposed to consider when they decide to release someone or set bail?

Judges are supposed to consider whether a person is likely to appear in court or if they are a “flight risk.”  In many, though not all, jurisdictions, judges also consider whether the accused is a danger to the community or to particular individuals.

The accused may present favorable information.  In theory, the defense attorney can present evidence of the person’s ties to the community, history of education or employment, or other positive attributes.  The defense attorney can locate family members and friends who may provide a support network and assurances that the person can be released safely.  Unfortunately, accused people who cannot afford private counsel usually meet their appointed lawyer shortly before the arraignment and bail hearing.  These lawyers usually have large caseloads and rarely have time for the in-depth conversation required to get information that might strengthen a bail argument.

Bail arguments themselves tend to be informal hearings with little evidence and argument, and few formal procedures.  They rarely last more than a few minutes. Because the hearing is so quick, judges rarely get a full picture of the accused’s individual circumstances, and too often rely on their own stereotypes and biases.  Some judges deliberately set bail they believe the accused cannot afford to ensure that person will remain in custody.

What happens to people who can’t afford the full amount of bail?

Bail is often set very high.  In California, for example, the median bail set was $50,000 in 2015. Few people can afford to pay the full amount. People who can’t pay generally have two choices: stay in jail until their case is resolved, or see a bail bondsman.

How do bail bonds work?

Many people do not have enough money to pay a bondsman’s fee.  Sometimes the bondsman will negotiate a payment plan, asking for a down-payment, as low as 1 percent of the total, with monthly payments.  Bondsmen continue to collect their payments long after the case is resolved.

What happens to people who can’t afford the bondsman’s fee?

Some people go into debt borrowing money from family members, friends and neighbors.  Sometimes they sell cars or personal property.  Paying money for pretrial freedom causes extreme financial hardship for many people, their families and their broader communities.

Those who do not have the money or cannot borrow it stay in jail until their case is resolved.  Either they sit in jail for weeks, months and sometimes years, until the courts can hold a trial to decide whether they are guilty of a crime, or they plead guilty so that they can get out of jail sooner.  Those who sit in jail may lose jobs, miss school, have children taken from them, suffer from lack of health care, and miss rent payments, leading to homelessness.

People plead guilty to get out of jail sooner?  Explain how that works…

Read on for further Q & A and insight on the realities of pre-trial detention and the opportunities presented by risk assessments.


From Human Rights Watch.

Read the full article here.

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