What is Money Bail?
There is a gap in time between when someone is arrested and charged with a crime and when they are given a trial for that crime. Bail, also known as bond, is money charged by the state to release a person from custody while their criminal or immigration case proceeds.
In criminal cases, some people are released on their own recognizance (set free for free). That means they are trusted to come back for their trial. Those who are deemed too big of a risk are held without bail. In many other cases, the judge sets bail. In Illinois people charged with crimes are required to pay 10% of the bond amount set by a judge as a “deposit.” For example, someone given a $1,000 bond has to pay $100 cash in order to be released from police or county custody. In other jurisdictions, judges set cash bail. If they set a $500 bail, the person must pay $500. The logic is that having paid (cash bail) or borrowed the money (bail bonds), they will return in order to get their money back. Bail is justified as a way to guarantee that people show up to court.
The immigration bond system criminalizes immigrants for existing. Though the U.S. government prosecutes immigration as a civil rather than criminal violation, immigrants are confined by ICE, often in for-profit facilities, they may be eligible for release or must pay a bond. Immigration bond amounts are set by ICE; while immigration judges may reassess this at bond hearings, many immigrants do not have access to legal counsel to advocate for a reduction. Immigration bond does not permit deposit amounts, requiring thousands of dollars of payment in-full to release an individual. Even when immigrants resolve their cases the bond may take years to return, if the funds are ever released; in 2018 ICE had not returned over $204 million in bond money. ICE spends two billion dollars each year to incarcerate upwards of 73% of immigrants in private prisons. Incarcerated immigrants may be forced to do labor for as little as a dollar each day, and private facilities maximize their profits by withholding care and supplies to immigrant prisoners. Each person freed from a private immigrant prison facility chips away at the profits of private prison corporations like CoreCivic and GEO Group.
Bond is essentially unfair and unjust.
Black people are twice as likely to be held pre-trial as white people and in 2015 the median bail set nationwide was $10,000, while the median pre-incarceration annual income of people incarcerated was $15,000. The average immigration bond amount is $8,000, and ranges between $1,500 to $20,000, requiring immigrant communities to dip into limited personal and community resources to free each individual. High bonds are justified by the idea that they keep us safe, but setting monetary bond undermines this very idea--someone who is not a threat to others should be released regardless of their access to money; likewise, someone who is truly a threat should not be released simply because they can pay bond. Our current system makes wealth, not safety, the primary determinant of whether someone is released while awaiting trial.
There is also no proven correlation between payment of bond and someone returning to court. Under Washington D.C.’s much-lauded Pretrial Services Agency, 85% of all defendants are released, no money bond is used, and 88% of all released defendants remain arrest-free and attend all court dates. In New York, 96% of the Bronx Freedom Fund’s clients attended every one of their court dates–a rate higher than that of people who paid their own bond! Prior to the 1980s, the majority of immigrants were released, rather than confined, before immigration court hearings. In a twenty-year-old pilot project, 93% immigrants and asylum seekers paired with case managers returned for hearings without the payment of bond.
The immigration bond system is getting worse, with proposed changes that will criminalize all asylum seekers. The Department of Justice has issued a memo to remove the right of asylum seekers to be released on bond. This proposal will transfer all release decisions to the Department of Homeland Security. If this change takes place, all asylum seekers will be subjected to incarceration by ICE, a site of widespread abuse and inhumane treatment.
Why is making bond so important?
The simple inability to pay bond often hurts the very things that help someone charged with a crime succeed: employment, stable housing, and strong family and community connections. For many people a bail amount of $100 or $500, and fees, means they will stay in jail for days, weeks, or months until their trial. People who have not been convicted of any crime can be jailed indefinitely. They can lose their jobs, their kids, their homes, and even their lives. People often plead guilty or plea bargain simply so they can get out and go home. These convictions mean that if the person is re-arrested (and remember that Black people, other people of color, and Native Americans are arrested at far higher rates than white people even when the rate of offenses is similar), their criminal record may result in more severe charges and harsher punishment. If the plea is to a felony, they can also lose their right to vote, to hold some jobs, and to live in certain housing. If immigrants who lack documentation or status are charged with a crime, they may be placed in mandatory deportation proceedings and lose the chance for bond release in future immigration proceedings. With the stakes so high, BBO hopes to alleviate the harm for as many people as possible. People need care, not cages.
Some people may borrow funds from a bail bonds company, an industry with few protections for borrowers against predatory bond lenders.