The independent news organization of Duke University

The burden of bail

Fifty-seven percent of the inmates sitting in the Durham County Detention Facility right now are locked up because they could not afford to pay bail. 

The jail sits a mile from Duke University and just across the street from the gleaming glass of the Durham Performing Arts Center. The juxtaposition of the two is striking: on the right, a temple to the arts filled with theatergoers who spend hundreds of dollars to see a two-hour show; on the left, a cold county jail filled with impoverished detainees—most of whom failed to post a bond of $500

Though an ACLU poll recently revealed that nine out of ten Americans support some level of reform to the criminal justice system, few people argue for the elimination of the cash bail system itself. And yet, in preserving this system, we condemn poor people to fill prison cells across the country without even the simple dignity of a trial.

On paper, bail makes sense. The fine acts as a form of insurance: a refunded deposit that ensures the accused will return for their trial. If the accused can post bail, they are free to do as they please until their court date. And—provided they attend that trial—the court will return the suspect’s bail at the conclusion of the case. Administering money bail is a common practice throughout the world, and in a perfect world, it would decrease the chances of pretrial detentions.

However, in practice, the money bail system is an institution rooted in abuse and prejudice. The racially oppressive nature of the criminal justice system allows judges to set bail amounts discriminatorily; across the nation, black Americans face significantly higher bail amounts than their white counterparts when charged for the same crimes. People of color are also more likely to serve pretrial time for nonviolent crimes, often leading to job loss and family strain. In fact, in 2016, a Durham judge sentenced an African-American male to 34 days in prison after he failed to pay child support. Extreme sentencing for low-level crimes perpetuates a route that pipelines black men and women from schools and jobs to long prison sentences.

And it’s not just the pretrial sentence that causes problems. A 2012 New York City review found that pretrial detention increased the likelihood of later conviction and pressured defendants to take guilty pleas. In essence, when Americans accused of crimes are unable to post bail, they are more likely to be found guilty later on—simply because they are poor.

When I walk by the detention center downtown, I am confident that there only two things separating the men inside charged with possession of marijuana and the kids smoking weed on the quad at Duke—money and race.

People in the bottom income bracket accused of crimes spend an average of 23 days behind bars before even facing a jury. Dated institutions like cash bail allow the wealthy to buy freedom and designate the poor to pay for crimes without conviction. In the words of the Equal Justice initiative founder Bryan Stevenson, “We have a system of justice that treats you better if you're rich and guilty than if you're poor and innocent.”

Stevenson has spent decades reimagining the criminal justice system, working to bring justice to poor people sitting in prison at the hands of unfair sentencing, discriminatory rulings and state abuse. His work is living proof that a world beyond bail is not only possible, but preferable.

Opponents of pretrial reform worry that without the monetary restriction of bail bonds, dangerous criminals would avoid conviction and detainment. Certainly, this concern is warranted. After all, we would never accept a society in which guilty people walk free without answering to a fair trial. Especially in cases of violent crime, it is essential that defendants have some deterrent to keep them from missing their court dates, and in some cases, be detained pretrial for safety concerns.

Yet, society reaps little benefit from charging non-violent offenders with exorbitant bail amounts. Low-risk offenders accused of traffic crimes, theft, or drug possession pose little threat to American citizens and yet make up the vast majority of pretrial detentions. Little by little, cities across the United States are beginning to experiment with reform. Pioneering pretrial programs in D.C. eliminated money-based detention altogether and reshaped the prosecutorial process. The District policy establishes mandatory check-ins for eligible defendants rather than monetary payments or detentions. These check-ins with community officers were found to be more successful than the cash bail system, resulting in an 88 percent court date attendance rate and—down the line—a mere 12 percent rearrest rate. When courts lift the crippling burden of financial debt and unwarranted detention, they allow potential offenders to steer away from crime and lead more productive and safe lives. What’s more, D.C. saves $338 million annually in prison maintenance costs by keeping pretrial suspects out of jail.

Durham and its peer cities should work to eliminate money bail and, in doing so, end the role of wealth in the justice system. After all, the choice is simple. Will we work to ensure that “innocent until proven guilty” is a promise fulfilled? Will we remove the weight of incarceration disproportionately resting on people of color and those living in poverty? Or is their freedom worth not even a night at the theater?

Leah Abrams is a Trinity sophomore. Her column, “cut the bull,” runs on alternate Fridays.