One of the many myths society teaches about people in jail is that if they are there, it must be because they deserve to be. Since our collective knowledge of structural injustice is so limited, very rarely do our discussions tap into the nuances of the criminal justice system—like the fact that there is money to be made in for-profit prisons so there is an incentive to keeping people locked up and many people remain in jail for indefinite periods of time simply because they cannot afford to post bail. Progress on reforming for-profit prisons is slow moving and hard to come by, especially now that Trump has decided to pay off his campaign donors by overturning the Obama administration’s decision to stop contracting with private prison operators. However, there is some hope when it comes to bail reform.
On Monday, in Cook County, Illinois, a judge issued an order that is intended to make sure that defendants no longer languish in jail simply because of an inability to pay bail.
The judge, Timothy C. Evans, announced that judges in Chicago could still set bail to ensure that defendants appear in court. But they will be required to determine whether the “defendant has the present ability to pay the amount necessary.” In other words, it will no longer be possible to set bail so high that people do not have enough money to pay for their release, which could mean they remain in jail for months or even years before a trial, a plea bargain or a dismissal.
Under the order, judges in Chicago will still be allowed to release defendants on their pledge to appear for their court date — or to deny bail altogether because of flight risk or danger to the community.
This is a critical step toward not punishing people simply because they are poor. When defendants can’t afford bail, they can end up imprisoned for days, weeks, months and even years until their trial. Some of these people are in custody for minor and nonviolent offenses. Being held in pre-trial custody for a prolonged period of time is not only psychologically damaging, it can also break up families and permanently impact a person’s life.
Studies indicate that those incarcerated before a trial or a plea bargain or before charges are dismissed are at greater risk of losing their jobs, their homes or even custody of children. They are also more likely to commit other crimes once released.
Even a few days of pretrial confinement can seriously destabilize a person’s life, potentially leading to later problems. Not only does this cost society more in the long run, but it also means that taxpayers foot the bill for nonviolent defendants who are locked up at $100 a day or more, even though they pose little threat.
In New Jersey, where a recent bail reform law was passed at the beginning of the year, the jail population is now down 19 percent. Though lawmakers say it is too soon to tell if this law will yield long-term success, it does help reduce the 12 percent of people in jail in the state who are there because they can’t afford bail of $2,500 or less. And this is a trend that is mirrored across the country—with hundreds of thousands of people remaining in jail only because they can’t pay for their freedom.
Reform advocates estimate that nearly half a million people are locked away in jails nationally because they cannot afford to post bail before their trials.
Throughout American history, there have been a number of moments that give us an opportunity to decide who we really want to be and if we are going to live up to the great society envisioned by our Founding Fathers. We certainly don’t practice the belief that all men and women are created equal, even though it’s written into our laws. But a core belief that has underpinned our society is and has always been that wealth should not be a barrier to freedom or success. Bail reform is one opportunity for us to show that we can live into our values. It is a necessary step to ensuring that all individuals have their rights and livelihood protected regardless of income.