OPINION | Bail, Ransom, Wealth Transfer, and Real Community Safety

by Sad A. Smith

Inequitable bail laws allow bail companies to extort the poor for the little wealth they have. By working as a proxy for the courts' cash bail system, bail companies are allowed to engage in extreme wealth transfers in exchange for your freedom. In reality, the U.S. legal system has normalized ransoms. Here's how it works: If you are charged with a crime but not convicted, the court has the option to set bail. If you can't afford to post bail, you are stuck in jail pretrial, despite being presumed innocent until proven guilty. You are caged until your case resolves. This process can take years. The courts make their determination based on the statements of police and charges determined by prosecutors. You have no way to refute these frequently baseless allegations. The court presumes the police are telling the truth, despite mountains of evidence that police lie in reports regularly. To obtain your freedom, you must pay the full amount to the court or pay 10% to 15% of the bond ordered by the court to a bail company. The bail company pays the full amount and will be reimbursed once the case resolves. In short, you exchange your limited resources for your freedom. The bail company keeps the 10% to 15% you paid no matter what, even if they are fully reimbursed by the court. They also secure collateral for the full amount. If you fail to appear in court (at times for any reason), and the court forfeits your bond, the bond company keeps your 10% to 15% and can collect on the collateral you signed over in exchange for your freedom. In any other circumstance, a contract leveraging your freedom in exchange for money would be null and void, but the criminal legal system allows it. Already economically depressed families have lost homes, vehicles, and other property as a result. In a disparate system that we know is racist, the central question should be, what about having money makes you safer for the community?

Bail reform is being discussed nationally. Illinois state legislators voted to reform the state's cash bail system under the SAFE-T Pretrial Fairness Act. The Act eliminates cash bail and ushers in a new standard for those charged criminally: "the presumption of release." The presumption of release standard is already present in Washington State, codified under Criminal Rule 3.2 (CrR 3.2). Although this change is a large step for Illinois in relation to its previous practices, the reform falls short of addressing the inequities in the criminal legal system.

The new Illinois Act requires the prosecutor to make a showing that someone is a danger to the community, is a risk of failing to appear, or is charged with most felonies or certain misdemeanors. That is consistent with Washington State's CrR 3.2. The only difference is Washington does not prohibit bail on any criminal charge, and in Illinois, a person will be held on a "no-bail" hold if the court finds they are a danger, a risk of failing to appear, or charged with most felonies and some misdemeanors.

The reform sounds better than it is, because in a racist, classist, ableist system, leaving decisions of freedom to judges, who fail to account for all of the ways systemic issues directly cause a person to have prior charges and create the inability to appear at every court date, means people who are already preyed upon by the system will still be victimized, only now the hold will be no-bail, as opposed to an untenable cash amount.

The Act does eliminate bail for a number of misdemeanors, which is exceptional; however, there is a loophole in the misdemeanor bail prohibition that legislators fail to account for. Cops and prosecutors have broad discretion in what is added to reports and what charges are filed. This means they can circumvent the prohibition against misdemeanor bail by adding more egregious statements to reports or filing higher-level charges. This is often how race disparities in filings occur. A 2013 study published in The Yale Law Journal found "that after adjusting for numerous other variables, federal prosecutors were almost twice as likely to bring charges carrying mandatory minimums against black defendants as against white defendants accused of similar crimes." The study also went on to conclude "that while a black-white gap appears to be introduced during the criminal justice process, it appears to stem largely from prosecutors' charging choices, especially decisions to charge defendants with 'mandatory minimum' offenses." Police reports are known to contain lies that result in extreme harm to communities. In Washington, the presumption of release exists in every case but capital offenses. Despite a law that facially appears to support release, over 12,000 people are held in Washington State jails every day. Between 1970 and 2015, the population of Washington jails increased 362%. Between 1983 and 2018, the state prison population increased 182%.

The suicide rate in the King County Jail in Seattle has skyrocketed. There has been a substantial increase in use of force, assaults, and death. The conditions inside the jail are egregious. The facility is cold, people inside have been deprived of clean clothing, and due to plumbing issues, there was brown water coming from the sinks. Bottled water had to be used. A 2021 King County audit discovered racial disparities in discipline between white and Black inmates. Black people make up only 7% of the population in King County but average over 38% of the adults incarcerated in King County adult facilities. The audit revealed, "The average length of time that Black people stay in King County jails is 40 percent longer than other people in custody (see exhibit O). In contrast, the average stay in jail for White people is 25 percent shorter than for other people." Bail is often the only reason people are locked up. Their inability to afford bail costs them their lives.

Why the criticism of Illinois' major reform, and of Washington's? Why should we not be satisfied? Because every year, our criminal legal system continues its genocide against Black and Indigenous communities, and every year, we are handed some small reform to convince us the system is fair, the deaths and harm justified for "public safety" it never delivers. Incarceration breeds more harm and makes the public less safe, yet our tax dollars are wasted on funding it. Neoliberal reforms do little to address the extreme harm Black, Indigenous, and Latine communities have experienced and only act as a protective barrier insulating the system, and all its actors, from accountability and abolition.

Bail does not assure the community is more safe. Prison Policy Initiative and other studies have found that in counties and states where bail reform has been implemented and pretrial release rates increased, there has been no increase in rates of violence in the community. Other studies have determined that the increased use of cash bail correlates with more failures to appear and no correlation with increased public safety.

The answer to public safety can't be "lock up the most impacted communities." It must be "abolish jails and resource communities." Since 1991, crime — including violent crime — has dropped nearly 50%, yet incarceration rates, specifically pretrial detention rates, have skyrocketed. Mass incarceration has had little impact on the dramatic decrease in crime rates. Other factors, such as an aging population, consumer confidence, decreased alcohol consumption, income growth, and abortion, are the major contributors. In reality, the solution to crime has always been to provide resources.

What is true public safety? The safest communities are the communities with the most resources. Despite this fact, Americans are inundated with propaganda inflating crime rates and supporting policing, jails, and prisons. Wage theft by employers steals nearly 300% more from the public than larceny, burglary, auto theft and robbery combined, but you never hear about wage theft in the news, and local prosecutors spend no time prosecuting employers. The criminal legal system's punishment-first methodology has devastated generations of communities and devours public budgets. King County spends 71.5% ($1.35 billion) of its $1.9 billion General Fund on the criminal legal system, and only 5.5% on Community Human Services, Natural Resources and Parks, and Public Health. The overall budget only invests 14% into Community and Human Services, and 7% into Public Health, while spending 11% on punishment, of the $15.8 billion 2023 to 2024 budget. Why are we investing comparable amounts in punishment when we could be spending those funds on education, health care, and housing instead of separating people from their families and caging them in inhumane conditions? The U.S. spends over $300 billion per year on the criminal legal system. That is likely a gross underestimate of total expenditures and does not account for the emotional and psychological harm to those incarcerated and their families.

A study from Washington University in St. Louis, Missouri, estimates that the broader societal costs put the total burden at nearly $1.2 trillion, after accounting for consequences such as foregone wages, adverse health effects, and the detrimental effects on the children of incarcerated parents, as detailed below. Other studies have noted similar indirect costs.

The comparative costs for people-centered investments don't come close to the nearly $1.2 trillion a year wasted on the criminal legal system. Free college for all is only $58 billion per year. Americans hold a total of $1.6 trillion in student loan debt. One year's divestment from the criminal legal system would nearly wipe out student debt. Bernie Sanders' 2019 Housing for All plan would cost $2.5 trillion over 10 years.

The King County Jail spends about $200 per day to cage someone. It would be more beneficial in the long term to give the person $100 per day for housing, food, and resources instead of destabilizing their life with jail. Incarceration replicates poverty and leaves the public more vulnerable.

Our dependence on mass incarceration has preyed on those who suffer from addiction and mental health diagnoses. According to the American Psychological Association, a report found that "mental illness among today's inmates is also pervasive, with 64 percent of jail inmates, 54 percent of state prisoners and 45 percent of federal prisoners reporting mental health concerns. In 2005, there were more than three times more seriously ill people in U.S. jails and prisons than in hospitals. That number has only increased. King County Jail is one of the largest mental health providers in King County. Washington jails hold an alarming number of people in acute mental health crisis.

Bail = ransom for the poor. The Illinois Criminal Justice Information Authority says, "One study found the average defendant earned less than $7,000 in the year prior to arrest and only 50 percent of defendants are able to post bail even when set at $5,000 or less." In a study of defendants in Philadelphia, researchers found pretrial detention leads to a 41% increase in the amount of non-bail court fees owed, such as court costs, victim restitution, lab tests, and probation expenses.

In Seattle, community organizations have stepped up. Northwest Community Bail Fund has helped bridge the gap for people ensnared in the criminal legal system who can't afford to post bail.

Basic human decency tells us humans should not be in cages. The entire planet watches in horror as we disappear communities into a criminal legal system that solves none of the issues we are told it solves.

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Sad A. Smith, aka John's sister, is a criminal defense attorney in Seattle, Washington. She was a public defender for seven years. Her focus is litigation and equity work. She supports Black liberation; Land Back; Indigenous sovereignty; trans rights; the abolition of the U.S. military, prisons, and police; and the destruction of white supremacist patriarchy and all settler colonial states.

Featured image by GAS-photo/Shutterstock.com.