Jails Are Filled With Those Who Can’t Make Bail

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By Jeff Adachi and Naneen Karraker

You may think jail is a place for convicted criminals. You would be wrong. In San Francisco, 85 percent of the roughly 1,300 inmates in county jail haven’t been convicted of anything. That’s more than 1,000 men and women. They are there not because they have been found guilty but because they simply cannot afford bail.

Despite our progressive reputation, California uses an ineffective, costly and outdated system to determine who stays in jail and who is released.

Earlier this year, San Francisco Superior Court judges raised the standard bail amounts for numerous crimes. The bail for contempt of court, for instance, jumped from $10,000 to $20,000.

These higher bails ensure that a poor person charged with even a minor crime will remain in jail, which costs taxpayers $140 per day, while a wealthy person will be able to afford to get out regardless of the severity of his or her charges. Being in custody means an increased likelihood of conviction. It means wearing jail garb instead of a suit in front of the jury. It means accepting a plea bargain just to get out to save your job or care for your children.

The use of bail also exacerbates racial disparities in the system. A recent report released by San Francisco’s Center on Criminal and Juvenile Justice cites a finding that the average bail for Latinos is more than $50,000, compared with $28,000 for whites. A recent study of 40 of the largest U.S. counties that found that, among those in jail because they could not afford bail, 27 percent were white, 36 percent African American and 44 percent Latino.

Non-monetary forms of pretrial release such as own-recognizance release or supervised pretrial release are underutilized in San Francisco because the Pretrial Diversion Project just doesn’t get enough support. With adequate funding, the program could hire the staff needed to make sure all people arrested are screened, their cases are presented to the court, and they are supervised to make sure they appear for hearings.

Non-monetary release isn’t simply fairer than the money bail system; it’s also more cost-effective.

Evaluations of pretrial services in five Northern California counties found that their return-to-court rates were higher than the national average for release on bail. San Francisco topped the list at a 97 percent return rate for non-monetary pretrial release as compared with an 82 percent return rate for those who put up bail.

While monetary bail is not going to vanish as a pretrial release option, we need to be smarter about it. Several states have passed laws shifting the pretrial release process from a cash-based one to a risk-based one. A Maryland law requiring courts to use a risk-assessment tool to determine pretrial release options resulted in a 3 to 4 percent increase in the number of people released in the first year. While not a huge increase, it is a step in the right direction. We could do the same in California right now.

Jeff Adachi is the San Francisco public defender. Naneen Karraker is a member of San Francisco Taxpayers for Public Safety. She has worked for over 40 years on criminal justice matters locally, statewide and regionally, including pretrial release options, alternatives to incarceration and youth violence prevention.

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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14 thoughts on “Jails Are Filled With Those Who Can’t Make Bail”

  1. Tia Will

    It is interesting that the current issue of the New Yorker includes the story of a young man held for three years without trial not because of lack of money for bail, but due to a related issue. The issue concerns the right to a “speedy trial” and what factors are involved in deciding where the individual is housed while awaiting that trial.

    The title of the article is “Before the Law” by Jennifer Gonnerman
    The case centers around the treatment of Kalief Browderman, at the time of his arrest a 17 year old who happened to be on probation for a previous crime that he maintained he had been a witness to but not a participant in. This claim becomes more believable when the length of his incarceration becomes based on his unwillingness even in the face of longer incarceration to lie and admit to a crime which he did not commit.
    Kalief was arrested with a friend on the basis of the claims of one individual who claimed that they had stolen a backpack from him two weeks previously. Of note was that he was inconsistent in his reporting of the date this had occurred and there were no other witnesses. The boys maintained their innocence. Kalief’s friend, not on probation was released to his parents custody. Kalief because of his status on probation was sent to Riker’s Island for the next three years, much of which was spent in solitary confinement. He consistently and adamantly maintained his innocence and despite the fact that he was offered very attractive plea bargains in terms of reducing his possible time in prison, refused to confess on principle saying that he would not admit to something he had not done and repeatedly demanded a jury trial. He never got one. In the end, the prosecution was unable to present proof since their only witness returned to Mexico without notification or address. So in the end, after three years of incarceration due to multiple trial postponements all on the request of the prosecution, he was let go for lack of evidence.
    What had this “mistake” cost him ? 3 of the most critical years in the development of an adolescent in our society. He was forever robbed of his social activities ( prom, parties, homecomings), his graduation, his ability to attend college in sync with his peers. All taken away forever for a backpack which he maintained through his entire ordeal that he did not steal. He maintained his innocence through depression so severe that he attempted suicide unsuccessfully three times. A position which he maintained even when he knew that he could walk free albeit with a record if he would only lie and say he did it.

    With all respect to those who defend our legal system and demand that others not
    “talk about what they are ignorant of” I would say that this is just one example of a case in which the system completely failed yet another young man. This is a case which was driven by respect for everyone else’s time except that of the accused.
    I do not see this abuse of our youth as a shining example of the best legal system in the world nor do I think that it comes anywhere near “justice”.

  2. Tia Will

    “Non-monetary release isn’t simply fairer than the money bail system; it’s also more cost-effective.”

    I believe that it is inconsolable for an accused’s ability to await trial outside of jail should ever be based on their ability to pay, but rather should always be based on a risk assessment of how likely they are to flee. Also it would seem that the bail system is hopelessly outdated since all non violent offenders could easily be traced by making their adherence to an agreed upon tracking system a part of the condition of their release. If restaurants can “find you” by pagers they provide, our legal system should easily be able to track you by anklets or possibly even chips. I know that I would find a chip preferable to incarceration and it would certainly incentivize me to show up for appointed court dates.

    1. tribeUSA

      Tia–yes, I would think robust ankle bracelets are an excellent alternative arrangement to bail. I believe Martha Stuart has shown how to deploy them as a fashion accessory. But please, no subdermal chips; gives me the creeps to set a precedent where the authorities can require these (and I think its reprehensible that many municipalities require these for pet licensing; should have a collar tag as an alternative optional form of ID).

  3. Tia Will

    tribeUSA

    “no subdermal chips; gives me the creeps to set a precedent where the authorities can require these”

    My daughter had the same reaction as you when I mentioned the idea of the sub dermal chip. I think that there is a very large “ice” and “fear” factor here. A couple of points.

    1. I would never favor making them mandatory. However, if voluntary, they would have huge advantages for some people. Imagine for instance the trust that I might lose with patients if I had to wear an ankle bracelet vs if I could have an undetectable chip. The same would apply to a job applicant. I think that if anyone were to ask the young man who was incarcerated for three years whether he would rather have been chipped or lost three years of his life….. I suspect he would have chosen the chip.

    2. However, in defense of the concern of you and my daughter, what did come to mind for me was a science fiction novel by Octavia Butler which I read as a young teen. “Undesirable people had large neck collars placed with the ability to deliver progressively stronger electronic shocks. The collars induced an instantaneously recognizable slave status and also the ability to control ….and torture.

    What I see as the biggest issue here is a huge discordancy between the ideals of our legal system with our stated belief in “innocent until proven guilty” ,the right to a “speedy trIal’ , the concept that “everyone is equal under the law” and what actually takes place in our judicial system with the punishment of confinement being applied to the “innocent” unless they have enough money for bail, “speedy trial” being delayed to accommodate the needs of the judges and lawyers but not those of the defendant, and the obvious inequality of pitting the resources of the state against whatever resources the defense can muster or whatever the public defenders office can muster.

    Does anyone really believe that the public defenders always have the same resources as the prosecution or that it represents “equality under the law” to have the rich able to buy the finest legal services available while the poor rely on assigned defenders who may or may not even meet with them regularly as in the New Yorker article ?

    These are only my perspectives. What I would really like to hear are the perspectives of some of the lawyers out there.

    1. South of Davis

      Tia wrote:

      > What I see as the biggest issue here is a huge discordancy between the
      > ideals of our legal system with our stated belief in “innocent until proven guilty” ,

      We need to balance safety with “innocent until proven guilty” since we don’t want to give guys like Marsh their knives back when they post bail a day after we find the blood of a dead neighbor all over their clothes…

  4. theotherside

    I have quite a few issues with this article. First and foremost, CA jails were designed and built to house inmates for brief periods of time. Usually a year at the most for misdemeanor convictions. With the implementation of AB109, every jail in the state is being stretched to the max. Housing inmates for years, up to 12 in some cases. This has put quite a bit of stress on infrastructure, budget and staff. So since beds are full of AB109 inmates, there is no room for defendant’s awaiting trial. So the trend has been to OR most felons, your “non-violent” offenders, within hours of booking. Would it surprise you to know that a person arrested for public intoxication spends more time in jail than a person arrested for a felony charge of burglary or possession of narcotics for sale in Yolo County? It should!!! Because the drunk has to have a blood alcohol level of 0.0 before release, the felony suspect gets a court date and an open door. So is that fair? Consider the victim of the burglary or the person whose neighborhood that drug dealer was using as his marketplace…ask them if that’s fair. Despite the uproar about this by a very few, citizen’s are fed up with crime in their neighborhoods…and how AB109 is adding to it.

    I was happy to see this as your example of unfair bail “The bail for contempt of court, for instance, jumped from $10,000 to $20,000.” The defendant most commonly charged with contempt of court is the person in violation of a domestic violence restraining order. So yes, it is quite appropriate to raise the bail amount for this charge, it keeps victims of domestic violence safer. Just for your information, bail amounts are not randomly raised, conversely there is a well thought out reason for it. This is not to punish the poor or widen the socioeconomic gap. However you would like to think that this is based on “the system” keeping the underprivileged and minorities down, it just is not the case.

    We all can find that one case of injustice by the system, it’s not perfect. But it is just as easy to find cases were someone was released to early either by bail or OR and they went back out to murder their original victim. Yes, this is the best system in the world…or at least it was before AB109.

    1. David Greenwald Post author

      So here is the point of the article – there is a large population of people who are populating jails now due to AB 109. Everyone understands that. But there is another group of people who are sitting in custody waiting for their case to heard, most of them are poor people, can’t afford bail and don’t qualify for “OR.” Many of them once their case is disposed of will never get sentenced to additional time in custody, so why are we housing them in custody? And who has the authority to address this issue. This is not just a fairness issue, it’s a resource allocation issue.

      1. South of Davis

        David wrote:

        > so why are we housing them in custody?

        The highly paid people that work in the courts and jails will always work to keep as many people in the “system” as possible (unless the courts make them let some people out) so they can get paid as much (and get as much overtime) as possible…

      2. theotherside

        I call this a consequence of committing a crime. There’s a novel concept. If I get arrested I will go to jail. If I cannot make bail, I will sit there until disposition. Hmmmmm, maybe I won’t commit a crime. Let’s shove a little bit of personal responsibility back into our population. Generation why? needs a kick in the back side.

        1. Davis Progressive

          except for one problem – these are people who have not had their day in court, some of them may be innocent. many of them are people that committed minor enough crimes that they won’t serve time.

        2. South of Davis

          theotherside wrote:

          > I call this a consequence of committing a crime.
          > There’s a novel concept. If I get arrested I will go to jail.

          It is consequence of being (ACCUSED) of committing a crime where the (POOR) who get arrested go to jail. I’m all for keeping people like Marsh in jail, but think the guy who had a few too many beers before riding a bike in Davis might be able to get out.

          Plenty of the people that get arrested deserve to be in jail but just like the “military industrial complex” is sucking money from citizens so is the criminal justice industrial complex sucking money from citizens.

          I’ve heard of more and more courts ban parking anywhere near the courthouse (for “safety” reasons) then locking the doors to the courthouse at 9:00 am and sticking everyone (even those 10 seconds “late” with a “failure to appear”.

          I heard this was a popular tactic in Ferguson, MO:

          http://www.npr.org/2014/09/10/347305791/how-court-fees-became-an-emotional-issue-in-ferguson-mo

          1. theotherside

            South of Davis wrote:

            “but think the guy who had a few too many beers before riding a bike in Davis might be able to get out.”

            He will. Misdemeanors do not have to bail out. They are booked and processed and given a court date, then released. If intoxication is a charge, they would simply have to wait until they are a 0.0 blood alcohol content. I said that earlier but you may have dismissed it as it didn’t fit your agenda.

            Same goes for someone booked on such a “minor” case of DUI. Booked, processed, and released once at 0’s. Even though bail for DUI is scheduled at $10,000. So when that person fails to appear at court for that DUI, the DUI warrant is for $10,000. Once that warrant is served, they are booked into jail….and released with a court date…no bail ever posted. Seem fair?

            Honestly this is a non-issue, made a big deal of by a couple of SF public defenders. This is an irresponsible article written with little to know research. I’m sure this is all falling on def ears…well at least the left ears.

            Davis progressive wrote:

            ” many of them are people that committed minor enough crimes that they won’t serve time.”

            See above…..

        3. Tia Will

          theotherside

          “I call this the consequence of committing a crime.”

          But what do you call it when the individual is innocent of the crime ? You consider it fair that a an innocent wealthy individual gets out on bail to go about their life while the innocent poor person remains incarcerated ?

          So much for innocent until proven guilty and equality under the law.

  5. TrueBlueDevil

    See how he threw out the racial stats, alone. Who is committing the crime, what kind of crime was it, were / are they a member of a gang? He mentions none of these.

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