Government created monetary bail to hold people who have been accused of crimes accountable, but the bail system unfairly and disproportionately harms those who are poor. Indeed, monetary bail allows accused people with financial means to pay for their freedom, whereas people with low means are forced to languish in jail while awaiting their fate.
Utah’s monetary bail system needs additional reform to make it fair to people who are poor while also protecting public safety.
What Is Monetary Bail?
Bail is an old form of protecting the peace that pre-dates the United States. It was first introduced to the States in the Judiciary Act of 1789 and was set for any offense that was not punishable by death.
Bail has since been through various reforms and today is a money security a defendant must pay to ensure they show up at their trial. If the defendant appears at all scheduled court dates, then their money is refunded. If the defendant fails to appear, then he or she loses the bail money paid.
In Utah, there are two types of monetary bail: cash bail and surety bonds. With cash bail, the accused must pay the entire amount directly to the court, whereas with surety bonds the accused makes an arrangement with a bonding company whereby he or she pays the bonding company about 10-20% of the bail amount and the company pays the remainder to the court. If the defendant fails to appear in court, then the bonding company is able to send a bounty hunter after the defendant and sue the person for the total amount of the bond.
Monetary Bail Imposes Unintended Consequences on Those Who Are Poor
People of limited financial means must often remain in jail because they can’t afford to pay cash bail to the court or purchase a surety bond from a bonding company. They also might not qualify for a surety bond because bondsmen typically require the defendant to have a job and financial stability so they know the defendant can repay the bond amount, or they collect some sort of collateral (i.e., a title to a house, car or boat, or jewelry or electronics).
Bonding companies may also require a co-signer, but people who are poor often don’t have family members or friends who are willing or able to co-sign either because they don’t have financial means themselves or they fear having to pay back the bail amount if the defendant skips court or is arrested again.
As a result, many people have no choice but to remain in prison until their trial, which prevents them from working and caring for their families. Or they are forced to choose between posting bail and providing for their families. Bail ranges from $350 for a class C misdemeanor to $25,000 or more for a first-degree felony. People accused of a crime may have to use their entire savings to post bail, which means they can’t afford to provide food, housing, and other basic necessities for their families. Either way, a person who has limited financial means suffers disproportionately to someone with financial means, even if he or she is innocent.
According to Katherine Hubbard of the Civil Rights Corp, cash bail is unjust because the amounts are arbitrary and it leads to worse outcomes for those who are stuck in jail. Hubbard adds:
there is a psychological effect on judges, as they see defendants who are in handcuffs and prison clothing. This can make them be more harsh on the defendant and pre-judge their guilt. Plus, many people end up pleading guilty to a crime they did not commit, just so they can get out of jail sooner. This means they will have a criminal record, which will [a]ffect their future job prospects. Of course, families and communities are also affected, as their loved one is stuck in jail and unable to contribute to the household. Being in jail, even just for a few days, can lead to the loss of a job, housing, and even custody of children. These results can impact individuals and families for years to come.
When people who are poor remain behind bars, their families are often left in the dark and their bills go unpaid, which can then harm their credit scores, leading to a downward spiral of poverty and dependency.
Remaining in jail also harms a person emotionally and socially. For instance, families are separated and romantic relationships are often severed. The isolation of losing essential relationships increases mental and physical health issues, which often complicates their re-integration into society once they are released. Being behind bars can result in depression and mania, and financial stress is one of the leading causes of suicide in the United States. Finally, from the taxpayers perspective costs increase as more people who are unable to post bail remain in jail.
People who are poor are often forced to suffer these consequences simply because they can’t afford to post bail, whereas people of financial means are able to avoid them. A person’s freedom shouldn’t be based on his or her financial status. If anything, we should be doing all we can to protect people who are poor from these collateral consequences of being accused of a crime because they are the most vulnerable and already need assistance.
Monetary Bail Is Ineffective
The primary purpose of monetary bail is to ensure that defendants appear in court. It is also designed to deter crime, which is why the amount of bail increases in proportion to the seriousness of the alleged offense. According to Judge Colleen O’Toole, there is “no nexus between money bail and guaranteed appearance.” In addition, judges make decisions about pretrial release in mere minutes without reviewing the facts and context, which means judge’s decisions about bail are arbitrary rather than based on the danger an accused poses to society.
Indeed, a 2017 audit by the Utah Office of the Legislative Auditor General found that judges other than in Salt Lake County have “[l]ittle reliable information about a defendant’s risk of flight or danger to the community. . . . For example, criminal histories, prior failure to appears, and ties to the community are not known when judges make their initial release decisions, despite studies that demonstrate such factors are highly predictive of a defendant’s risk of flight or threat to public safety.”
The audit states that a judge’s professional judgment is not adequate alone—they also need evidence-based risk assessment tools to help them properly evaluate the defendant’s safety risk to the public.
A Better Way
Whether or not a defendant remains in jail should not be based on the person’s financial means. Instead, pretrial detention decisions should be based on facts and evidence related to the person’s alleged crime, criminal history, flight risk, and other related factors. Yes, such an assessment will require more time and effort, but it will be more effective at protecting public safety while also making the system fairer for people who are poor.
One challenge with this approach is that some people might remain in jail with no way out while they await trial, even though they are innocent. To address this concern, judges could make a brief analysis of the strength of the evidence against the defendant, similar to the analysis made for preliminary injunctions in civil cases. In addition, the law could provide some type of restitution for defendants who are detained and are later found to be innocent, which could help deter government from making false arrests.
In 2020, the Utah Legislature passed HB206 which provided many protections for those who are poor and disadvantaged. For example, it required courts to (1) consider a defendant’s ability to pay when determining the amount of a financial condition for release; (2) release a defendant by imposing the “least restrictive reasonably available conditions of release” on the individual; and (3) release a defendant on his or her own recognizance.
HB206 was a positive step in the right direction. For instance, according to Salt Lake County District Attorney Sim Gill, since HB206 went into effect, 94.5% of the riskiest defendants have been detained and 3,695 people who did not appear to pose a risk to the community were not required to post bail in order to be released prior to their trials. In Gill’s view, HB206 has been a win for both those who are poor and the taxpayers.
However, in 2021 the Legislature essentially repealed HB206 when it passed HB220. The sponsors and supporters of HB220 cited concerns about unintended consequences resulting from HB206 related primarily to public safety. While some of their concerns might be valid, HB220 unfortunately stripped from the law many of the positive protections instituted through HB206.
HB220’s sponsors made it clear that they intend to craft another bill as soon as possible that appropriately balances public safety with the rights of the accused, but that process may take considerable time. In February of this year, Illinois became the first state to abolish monetary bail. Utah should move in the same direction. At a minimum, we encourage Utah’s legislators to reinstitute the protections granted in HB206 as soon as possible.
We appreciate legislators’ recent efforts to improve the bail system and encourage all stakeholders involved in bail reform to design a comprehensive bill that is fair to those who are accused of crimes—and especially to those who are poor—while also protecting public safety.