Here is part of a jail study recently done by my friend, Marie VanNostrand of Luminosity, for New Jersey:
As stated previously, nearly three-fourths of the jail population had a primary custody status of pretrial (Superior and Municipal Courts). A closer examination of those inmates reveals that just over 5,000 inmates, or 38.5% of the total population, had an option to post bail but were held in custody solely due to their inability to meet the terms of bail. This means that the inmates were not serving a sentence, had no holds or detainers, and could have been released if they were able to post bail in the form of cash, cash/bond, 10% option or support arrears. Table 11 contains the bail amount ranges by bail post option for inmates who were held on bail only. When considering the 10% Deposit Option and the Cash or Bond Option, which allows for payment of approximately 10% to a private surety, there were approximately 800 inmates held in custody who could have secured their release for $500 or less. Considering the same circumstances, an additional 259 inmates could have secured their release for between $501 and $1,000 and an additional 489 inmates could have secured their release for between $1,001 and $2500. When these groups are combined, there were 1,547 inmates (12% of the entire population) who were held in custody due to an inability to pay $2500 or less.
Prior to studies like this we would say, using logic, that there were people in jail who couldn’t get out because they couldn’t raise the money. If you can imagine, there were people – like bail industry lobbyists and certain uninformed criminal justice types – who simply didn’t believe it. When pressed, they sometimes even said that if there were such defendants, most of them were probably choosing to stay in jail for some reason or other.
In Jefferson County, Colorado, we set out to test that assumption by going cell to cell and asking defendants who had not posted bail why they had not posted bail. We asked everyone, and then we separated out the ones with holds, those serving sentences, etc. Like New Jersey, we found that 60% of those defendants who had not been released on bail within 48 hours were still in custody because they couldn’t post the amount. And yes, we did find some that some didn’t want to post it for one reason or another (like hoping to get time-served), but only about 7% (who weren’t counted in the 60%, by the way). Then we did another study later on where we found, like they found in New Jersey, that about 100 “minimum security” inmates in the Jefferson County Jail had bail amounts of $500 or less, and another 100 had bond amounts between $500 and $1,000. The bottom line is that if they were to look into it, virtually all jails situated in jurisdictions wedded to a money bail system will find some percentage of defendants incarcerated unnecessarily. And if they were to look into the amounts keeping these defendants in jail, I think they would be surprised at how low those amounts may seem to be – especially to people, like judges and attorneys, who probably think that $500 is no big thing.
But my point is this. In bail, there are certain basic assumptions that we would like to be able to make concerning defendant behavior, such as the fact that most defendants would rather not stay in jail versus being free before their trials. Unfortunately, those who profit off of the old system will deny virtually everything, forcing people like me and Marie to go out and prove it.