The Price of Innocence

Calif. bail system shouldn’t put those who can’t pay behind bars

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“Innocent until proven guilty” is woven into our country’s Constitution. But California’s bail system fixes an exorbitant and discriminatory price tag on the right to be treated as innocent. In practice, “innocent until proven guilty, if you have the money,” is more accurate.

The bail system’s foundation is built on oppression of the poor. After an individual is charged with a crime and is eligible for bail, they can walk free until trial in exchange for bail money.

But at $50,000, the median bail price in California exceeds many household incomes and excludes hundreds of thousands from this opportunity.

Those who cannot pay are locked up. While they have not yet been proven guilty, they certainly are not treated as innocent. Individuals who cannot afford bail make up 63 percent of inmates in California jails — that means each day, about 46,000 individuals sit in jail, pleading not guilty and waiting up to 30 days to be tried.

Freedom based on wealth is inherently unjust, but this isn’t the only aspect of the justice system that contradicts its name.

Black and Latinx individuals are disproportionately arrested and jailed compared to white individuals in national and state statistics. In the U.S., 2,306 per 100,000 Black people are incarcerated compared to 450 per 100,000 white people. Our state’s disparity is even higher than the national one — in California, 3,036 per 100,000 Black people are incarcerated and 757 per 100,000 Latinx people are incarcerated. Comparatively only 453 per 100,000 white people in California are incarcerated.

The statistics speak for themselves — the system needs to change.

Inequality in the prison system is the combined result of racially targeted laws, stop-and-frisk policing, unequal sentencing and other unacceptable components of an institution built on racism. Because low-income people of color are disproportionately arrested, they are also disproportionately affected by the bail system.

Further, those held in jails before trial are more likely to be convicted of a felony, incarcerated and given longer probation times. Often, this is because a misdemeanor or non-serious felony defender who pleads guilty will return home, with an offense on their record. If they plead not guilty and cannot pay bail, they must wait for trial in jail.

Both scenarios have detrimental effects attached and nobody should be forced to choose between them.

The bail system serves daily as a key component in the systematic imprisonment and conviction of low-income people and people of color. It perpetuates racism and inequality and it needs to change.

Because bail rates are so high, when an individual chooses to pay bail it is often a bail bond company that pays the full sum. The company will then be paid back when the accused appears at their court date. Although bail bond companies are often presented as a solution, they actually contribute to the problem.

Under the guise of assisting individuals in paying bail and walking free, bail bond companies often require a nonrefundable deposit of about 10 percent of the bail. So for the median bail price of $50,000, most bail companies would require $5,000. For low-income families and individuals who choose to accept this offer, paying the deposit back can severely worsen their families’ economic situations.

The gender breakdown of California’s county jails is about 87 percent male but the effects of exorbitant bail costs extend beyond the individuals awaiting trial behind bars. Black and Latinx women, often the mothers, sisters, wives and partners of the men in jail, pay the most in bail money. Women of color are also paid the least compared to all other demographics, making the task of paying bail particularly difficult for them.

Paying bail deposits can immediately put the families of those on bail in debt, but not paying bail may do the same.

If an individual cannot pay bail and remains in jail while awaiting trial, they are unable to work and earn money. And the inability to pay bail goes beyond economic status — undocumented immigrants are ineligible for bail and must also await trial in jail without working. People in these situations then cannot regain economic stability or provide for any dependents.

The purpose of bail is to ensure an individual appears at their court date because of the monetary incentive. Withholding bail eligibility should keep those accused of more dangerous crimes from potentially harming others. But by making money the deciding factor and failing to use any kind of risk assessment, the current system does neither.

Some California legislators are now recognizing these glaring issues and have proposed a bill that could move the bail system closer toward justice. Senate Bill (SB) 10 would replace the monetary bail system with proper pretrial risk assessments, probation-like monitoring and trial date reminder calls.

Amending the bail system in California will not solve America’s larger problem of mass incarceration and racist policing. But if such legislation were passed, it could alleviate some effects the carceral system  has on low-income communities of color.

By removing money from the equation, SB 10  would reduce income-level discrimination. Lawmakers in California have the responsibility to do everything in their power to push this legislation through.

Until they do so, the 46,000 individuals in California county jails awaiting trial will also be waiting to be treated rightfully as innocent.