How Money Bail Imprisons People For Being Poor – And What Can Be Done About It
Bail reform advocates in Maryland are pushing legislation which will eliminate money bail, a key step they say in broadening movement to eliminate jail time for people who cannot afford to pay
TAYA GRAHAM: This is Taya Graham reporting for The Real News Network in Baltimore City, Maryland.
Will the country continue to jail people for being poor? That’s a question facing the State of Maryland. Recently, the Maryland Court of Appeals adopted a rule that judges should not impose bail on people unable to afford it. However, it did not eliminate money bail completely, which advocates say is necessary to make the system fair. The powerful bail bonds lobby has vowed to fight it. Meanwhile activists are planning to push several pieces of legislation to reform the entire system.
To hash out what’s at stake, we’ve talked to legal professor Doug Colbert. But first, to discuss the ruling and what might happen during the current legislative session, I’m joined by investigative reporter, Stephen Janus.
Give us some background on what’s going to be happening during this legislative session.
STEPHEN JANIS: Well, as we’ll see later in our interview with Professor Colbert, the advocates who have been advocating for bail reform, say this is a session where it has to happen. Because of the culmination of events, including a report by State Attorney General, Brian Frosh, it says that money bail is actually unconstitutional. Which is really a different type of perspective than we see in the Maryland legal system. Which has been highly dependent upon money bail, as sort of a form of pre-incarceration. So, you will see that happening.
You also have, of course, the report from Common Cause. We’re going to ask Professor Colbert about that later, that shows that there’s a lot of money coming in to people like the Chairman of the Senate Judiciary Committee, Bobby Zirkin, that could actually influence this. So, this is going to be a big session to see if this could actually happen.
TAYA GRAHAM: Stephen, prior to the ruling there was a report issued from the Office of the Public Defender, on cash bail. Can you tell us a little bit about that?
STEPHEN JANIS: Well, basically the report looked at cases going back to, I think 2011. And they found that about 17,000 people, charged with minor crimes, had to stay in jail until their trial date, ’cause they couldn’t afford bail of less than, I think it was $2,000.00. And that 50,000 people, over time, spent some time in jail because they couldn’t immediately afford bail.
So, basically what the case was saying was — it wasn’t about the crime that you committed specifically, that meant you would be in jail or incarcerated — but actually whether you could afford to pay the bail. And, of course, this is the primary point of conflict in the city, which has been heavily dependent on criminal justice as, sort of a way, to solve social issues.
Which, are poor people more than likely, no matter what they do, or how innocent, whether they’re presumed innocent, can’t get out. Now, if you’re a serial killer, and you’re a millionaire, presumably you’ll be able to get out in the Maryland system. So, it has really very little to do with public safety.
TAYA GRAHAM: So Stephen, for people who aren’t familiar with bail, how does someone get a cash bail?
STEPHEN JANIS: Well, cash bail is sort of a very difficult part of the system that has been emerging recently, that judges have been using. Cash bail means that you can’t put up property, that you can’t use a bail bondsman to put up a bond. Cash bail means you have to come up with $2,000 cash. There have been cases we’ve covered, including the case of Calvin Wilkes, who was put in jail for a $15,000 bail, for failing to obey an order.
So, it really is a way to just keep people in jail, because you can’t even use the services of a bail bondsman. Now, bail bondsmen are not cheap, usually they want 10%. So, for someone who is low-wage earner, they want you come up with $200 cash that you have to pay. So, if you get $10,000 bail, that’s a $1,000. Some will do it for less, but still it’s a lot of money for working people. And that’s what this is about.
TAYA GRAHAM: And they don’t get that money back, right?
STEPHEN JANIS: No, you don’t get the money back. Of course you don’t get the money back.
TAYA GRAHAM: So, even if you do everything you’re supposed to. You go to court; you do what the judge asks you to. You don’t get that bail money back that you paid?
STEPHEN JANIS: No, I mean, that’s the thing. I mean, a thousand dollars, for a person who is living on a barely living wage, it is almost insurmountable. It’s a huge expense. And it’s only, I think, when people like Professor Colbert will argue, a perpetuator of poverty in the city.
TAYA GRAHAM: So, just to make sure that we’re absolutely clear. If I am given a bail of $1,000, to pay, and it turns out that I’m a acquitted of this crime, I’m actually not guilty.
The judge says, “You didn’t do anything wrong.” The bail bondsman still gets to keep the money that I paid him?
STEPHEN JANIS: Absolutely. That’s how the system works. The bail bondsman gets the money; the court fees have to be paid. There are a variety of charges. You probably have to pay a lawyer. You might have to go see a pre-trial counselor. The system is geared towards extracting as much money from people as possible during the process.
And as we’ve seen in Baltimore, the system has been used extensively. We had a period of time, during zero tolerance, when there were a hundred thousand arrests made per year. Imagine the amount of money that pumped into the bail system. Imagine the money that pumped into the correctional system. I mean, it is a massive system, and like I was saying, before we were in previous interviews, many cities are known for certain things: New York is known for its finance and media. Houston, Dallas might be known for oil and gas. Baltimore is known for the criminal justice industrial complex.
That’s what drives this city, that’s what drives the money. And you can talk about our other institutions. But there’s no bigger institution in the center of town, than our criminal justice system. Anyone who comes here, you drive down our main highway, what you see is a huge massive prison. Which is Central Booking. Which is really constructed to process 40,000 people a year. Now that’s a lot of people.
Now, during zero tolerance, it was processing 100,000 people here. Our business is the crime business, and that’s why we’re having this discussion. I mean everyone, all the data shows that this particular system doesn’t really improve public safety, and only makes people lives worse. But yet, we’re still talking about it. And reform, to me, seems unlikely.
Professor Colbert, the Court of Appeals adopted this rule. What are the implications for the bail system, with this rule being adopted?
DOUG COLBERT: And what our high court is accepting, is a rule that reminds judges that they cannot be setting bail that they know people cannot afford. And unfortunately, we have a lot of people waiting trial. Many charged with non-violent crimes, who are there for one reason only — they don’t have the money to get out.
STEPHEN JANIS: Well, do the judges have to follow this, or is this something that’s just like a guideline? I mean, how permanent, or how irrevocable, is this sort of adoption of the rule?
DOUG COLBERT: Well, judges have discretion. So, a judge can say, “Okay, I’m not supposed to set a bail that you can’t afford. You really can’t afford anything. So, that leaves me with a choice of letting you be released on recognizance, or putting you in jail without bail.” And we have seen judges who are doing the latter.
They’re saying, “I’m going to remand you without bail.” Now, I would say that that’s not only against the spirit of the rule, but it’s against the law that says that people are entitled to their freedom, unless they represent a danger to others, or a flight risk. So, the lawyers really have to be very active here, when they see judges doing something that they, and I believe, is unlawful, lawyers have to challenge those decisions.
STEPHEN JANIS: Now, there is a push in Annapolis to just do away with money bail altogether. What do you think the chances are of success, and which sort of proposals do you think will do the most to effectuate that change?
DOUG COLBERT: Well, there are two proposals, two bills that are being offered. One would eliminate money bail entirely, and eliminate the commercial bail bondsman. The other would allow for a more gradual elimination, leading towards the elimination of bail. Which really means that judges would be told that they should offer non-financial conditions, before they ever think about financial conditions.
I’m in the camp that says, “This is the opportunity where we really ought to follow the Governor’s recommendation commission on pre-trial justice, a recommendation of 2014, to get rid of the money bail system entirely. In our opinion, money should never decide the issue of whether you regain your freedom, or whether you stay in jail. It ought to be done objectively.”
There ought to be reasons, if somebody represents a danger to others. Then that person should be denied bail. But most people do not represent a safety risk, it’s more of a situation where they’re working people, or poor people, they don’t have the money. So, when the judge sets an amount that is well beyond what people can afford…
And then, of course, the worst thing here, Steve, is that you could put the money in the court, and get it back at the end of the case. But what judges usually do, is they require that people pay the bail bondsman’s non-refundable 10% fee.
So, it’s $10 on every $100 that comes in. It’s a $100 million industry. And that money gets distributed to very powerful legislators in Annapolis. So, what we’re looking for here…
STEPHEN JANIS: Well, let me ask you something — we’ve spoken to, people in the bail bonds industry — they say this is going to let dangerous people out on the streets. These people will not show up for court if they don’t have an incentive to do that. How do you respond to that?
DOUG COLBERT: Well, the interesting thing is, that bail bondsmen would like people to get out of jail, as long as they get paid the bondsman’s 10%. They’re not particularly interested in the safety issue. They’re interested in judges giving people bail, and then collecting their 10% on it. So, there’s no connection between money and safety.
STEPHEN JANIS: Now, money is a bit part of this. I mean, the Common Cause just released a report that said, “Hundreds of thousands of dollars have been funneled into the campaign coffers of state legislators. Particularly Bobby Zirkin, Senator Bobby Zirkin, who heads the Senate Standing Judiciary Committee.” Is that money going to be an obstacle to any sort of reform in Maryland, in the legislative session?
DOUG COLBERT: Well, and that’s exactly how our system works, Steve. The powerful, the rich, they have their lobbyists who do a very good job. They come bearing gifts to elected officials; those gifts are usually in the form of contributions to campaigns, or other benefits that may directly influence our elected officials.
And so for as long as we’ve been doing this, I’ve been doing this now for 19 years, and we’ve been trying to get reform. Every time we come close, it gets blocked by some very powerful legislators, often they’re the Chairs of the judiciary committee, in this case, Senator Zirkin, Delegate Joe Vallario — they’re the Chairs of the two committees, and they have always been very friendly with the bail bondsmen. They support that system and they also benefit directly. They get a substantial amount of money.
DOUG COLBERT: Now, one thing you talked about in the past, the last question — is that the insurance companies, they’re bigger corporations that have a stake for making money in this. Can you talk a little bit about that?
DOUIG COLBERT: Well, we talk about bail bondsmen; we really should be talking about insurance companies. For every thousand dollars that a bondsman gets on their fee, the bondsman keeps 40%, or $400. And gives the other 60% to the underwriter, the insurance company. Which may very well be the person that you write your check to, for car insurance, or mortgage, or anything else.
But, the insurance companies are very solidly, primary players in all of this. This is a big industry, when the Abell Foundation did a report about 15 years ago, they estimated between $100 million and $150 million is collected every year in fees. So, there’s a lot of money to go around, to purchase the influence that has blocked reform up until now.
TAYA GRAHAM: This is Taya Graham, and Stephen Janis, reporting for The Real News Network in Baltimore City, Maryland.