Freedom for Sale: The high price of cash bail

I was sitting outside Courtroom Number 9 of the Government Center in San Marcos. Perched on a hard wooden bench, I could feel the sunlight eking its way into the sterile, unforgiving lobby. I was waiting for a hearing on a guilty plea and overheard a lawyer talking down a family member pleading for a bond reduction hearing for his father.

The conversation went like this: “Maybe I could afford a $50,000 bond,” the family member said. The lawyer coldly advised, “I understand that you think your father is innocent. I understand that he wants to get out today, but the District Attorney’s Office does not bring charges lightly. I’m hearing you say you think you could afford a bond. If you can’t afford it, it’s a waste of time.”

Any time a person is arrested and accused of committing a crime, a decision has to be made. Will this person be quickly released back into the community or will this person be effectively sentenced to years of languishing in jail — no matter their guilt or innocence — waiting for the case to go to trial?

In nearly every case, the answer comes down to one thing: Money.

Almost everyone who is arrested has a constitutional right to be released on bail, with the exception of capital murder defendants or people accused of certain repeat felonies or bail violations. The Bill of Rights states that bail cannot be excessive, as defendants are still legally presumed innocent — a principle and key tenet at the heart of the U.S. criminal legal system.

When a court sets cash bail, the full amount can be paid to the court, which will refund the money if the defendant follows the conditions of the bail bond. Often, the accused chooses to pay a nonrefundable percentage — usually 10% — to a private bail bonds company that fronts the full cost and monitors the defendant. For example, if bail is set at $10,000, a payment of $1,000 to the bail bonds company can get them out of jail.

Courts set bail by deciding what restrictions are needed to release people who are legally presumed innocent before their criminal case is resolved. The bail release system has two key goals: protect public safety and incentivize defendants to come back for their court dates.

According to the American Bar Association, cash bail creates a two-tiered system of justice hiding in plain sight. It splits the criminal legal system into two separate and unequal processes: one for those who have money and one for those who do not.

People who can afford bail return home to their families, jobs and lives where they can prepare to fight their case from a position of freedom. People who cannot afford bail are left behind bars for the duration of their case — often lasting months and even years.

According to the ACLU of Texas, more than 60% of people in Texas jails have not been convicted of a crime and are awaiting resolution of their cases behind bars because they cannot afford bail. As of July 31, 80% of inmates in the Hays County Jail are being held pretrial. That’s 448 individuals who are presumed innocent. And 78.9% of those were accused of non-violent crimes.

According to the Hays County Jail Dashboard, a public-facing data dashboard in collaboration with the Vera Institute of Justice, the median length of stay for people held pretrial was 88 days; however, 43% spend one to six months, 16.3% are detained for six months to a year, 13.4% for one to three years and 2.7% for more than three years.

If we want to keep Hays County communities safer, pretrial incarceration is not the answer. In fact, research shows that pretrial incarceration itself poses a risk to public safety. The collateral consequences of incarceration, such as housing instability, child custody loss and employment barriers often create the conditions that lead to recidivism. Evidence suggests that people who are incarcerated pretrial are more likely to be accused of future crimes than those released pretrial, according to a 2017 study in the Stanford Law Review.

This two-tiered system not only impacts low-income individuals, but also overburdens minorities and reinforces stark racial disparities behind bars.

Of those incarcerated in Hays County, Hispanic men make up 48.8% of the jail population and 15.5% are non-Hispanic Black men.

As is the case nationwide, Black people are more likely to be jailed in Texas than white people. Though the state’s population is about 13% Black, 29% of people in Texas jails in 2015 were Black, according to The Vera Institute. In 2019, about a third of inmates in Texas prisons were Black.

Further, bail amounts for Black and Latino men are 35% and 19% higher, respectively, than amounts for their white counterparts, according to the Center for American Progress.

During pretrial incarceration, people can lose their jobs and homes, be separated from their children and must endure the daily trauma that life in jail brings. These pressures mount against them, ultimately impacting case outcomes through higher conviction rates and harsher punishments than their released counterparts. The research also shows that pretrial detention undermines the legitimacy of the justice process by encouraging the likelihood of guilty pleas by an astounding 25%, regardless of actual guilt or innocence.

And impacted people don’t bear the cost of bail alone. Once cash bail is set, people who can scrape together the amount make the difficult decision of putting critical resources on the line, sometimes prioritizing freedom over other necessary living expenses. This financial cost is often distributed beyond the individual as parents, siblings, friends, partners and larger networks chip in everything they can — disrupting the economic stability of everyone involved.

Not only does it affect entire families, but taxpayers spend $14 billion each year to incarcerate legally innocent people. When factoring in the impact of pretrial detention on families, communities and society, the true economic cost of this crisis has been estimated to approach $140 billion annually.

Freedom should not be for sale. Yet, the bail system in the United States criminalizes poverty every day. Lady Justice peeks through her blindfold and finds the poorest among us wanting. The scales are weighed heavy on one side by a powerful and flawed system while the other side — presumed innocent, bereft of the ability to fight — hangs high in the air, light as a feather. As free as they’ll ever be.

How much would you be willing to pay for your very freedom?

How much can you afford?

Frels is the editor of the Hays Free Press/News-Dispatch and happily welcomes other opinions on this matter. She can be reached at [email protected].