Bail Reform: The Basics

a gavel, a pair of handcuffs, and a pile of money

As we fight to dismantle the prison industrial complex and the carceral state, one small step we can take toward a more just justice system is reforming how bail works. But how does it work now? What’s the problem with it? And what can we do to fix it?

First and foremost, we need to recognize that bail (also referred to as “bond”) is for people who have not been convicted of the crime in question. When you’re arrested for a crime, whether a misdemeanor or a felony, you should receive a bail/bond hearing within 28 hours in Athens-Clarke County (people booked into the jail between 8 a.m. and 4 a.m. can expect to be seen by a magistrate judge within 24 hours). There are exceptions, such as cases involving severe mental health issues that might require the district attorney and police officers to be present, but most people receive their initial hearing within a day. If they’re heard in the courthouse, the sheriff brings them in in shackles (including leg irons), a choice that is dehumanizing and not required by law.

Many misdemeanors have a pre-set bond, listed on a schedule, for which you do not see a judge. Instead, you bond out at the jail, with a representative of the sheriff’s office. These misdemeanors include things like shoplifting, trespass, battery, possession of marijuana or first DUI. Some felonies are on the schedule, too, like forgery, entering auto and felony obstruction. Amounts on the schedule range between about $1,000 and $10,000 but most are on the lower end of that.

If you have someone who has that amount on hand, they can come to the jail and hand over that amount in cash. When you show up for your trial, the person who posted bond for you receives the money back. Most people are not in this situation and make use of a bail bond company, which charges the accused a percentage of the amount of the bond to post it. For example, if your bail is $5,000, the bail bond company might charge you 10 percent, or $500, to sign a guarantee to the court that you will show up for your trial. You don’t get that $500 back, even if you show up. That’s how bail bond companies make money.

In other words, even if you haven’t been convicted of a crime, you’re likely to be out a substantial amount of money. And if you can’t afford either bail or a bail bond company, then you stay in jail. Estimates of how many people are in jail pre-trial because they can’t afford bail range between 60 and 70 percent of inmates, a huge number. The Nation points out, “Nearly all of the growth in our jail population over the past 30 years is due to the detention of those not yet convicted of any crime. The number of Americans sitting in jail without a conviction is larger than most other countries’ entire incarcerated population.”

Who’s hurt by this system? As you might guess, the bail system disproportionately harms poor people of color and helps increase inequity. It encourages people who can’t pay to plead guilty in an attempt to reduce jail time. And studies have shown that both black and white judges impose higher bail amounts on people of color.

What’s the point of bail? The original idea was that if the system held onto your money or property, you were more likely to show up for court, but “on recognizance” bonds, which don’t require the accused to pay unless they don’t show up, are just as effective and don’t privilege wealthier people as much as cash bail. In the modern era, bail functions more as a punishment for people who (let’s say it again) haven’t even been convicted of the crime in question. Public safety concerns are one thing, but why should people accused of DUI who can afford to pay bond get out of jail and others just sit there? There’s no difference in their crime or in the potential danger they pose to others.

Senate Bill 407, which the Georgia General Assembly passed and Gov. Nathan Deal signed last year, required judges to inquire about the financial situation of the accused when setting bonds. Many of these judges were already doing so, and the law does not tell them how to take that information into account. The more effective parts of the law are that it recommends a citation system for many misdemeanors, which means no arrest and no bond, more like a traffic ticket. Atlanta’s cash bail reform last year, passed before SB 407 was signed, worked along these lines but only affected municipal ordinances, not state ones. It also left a lot up to the discretion of individual police officers, who could charge people with either the state or municipal offense in cases where there was overlap.

Even the Republican administration of this state, as well as those in other states, recognizes that the bail system badly needs reform. We’d like to see that reform go as far as possible, and we look forward to seeing our new mayor and commission tackle it here in Athens.

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