U.S. jails are increasingly holding people who have not been convicted of a crime even as overall prison numbers decreased this past decade, with the vast majority of pretrial detainees being people of color who can’t afford their cash bail.
That's according to a report released Thursday by the U.S. Commission on Civil Rights.
Among its takeaway is that 60% of people awaiting trial remain in jail, at greater cost to taxpayers, simply because they can't afford bail, commission chair Norma Cantú told reporters in a phone call Thursday.
But the political polarization around the issue was evident in the commission members' own responses to their report, which included fiery write-ups, a dissent and a rebuttal.
Most notably, the report was released without findings and recommendations for policy action by the president or Congress because the ideologically split commissioners failed to garner a majority to approve their release. The 4-4 split was the product of appointments made by President Donald Trump in the year before he left office.
This is the second time the commission failed to pass on recommendations and findings, the first being in September with a report on racial disparities in maternal health, said the commission's media and communications director Angelia Rorison. It was the only report released in 2021, after five reports each in 2020 and 2019. For roughly the last decade, the commission has had a left-leaning majority.
"We find ourselves in a position where we lack a majority to continue our mission," wrote commissioner Michael Yaki, a Democrat. The report "only plays at the edges, if at all" on the issue but "is too important an issue to be subject to the vicissitudes of partisan posturing," he said.
The bipartisan federal commission's 281-page report is its most recent deep dive into the civil rights implications of cash bail and follows virtual testimony nearly a year ago by officials, experts, advocates and those impacted by cash bail.
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In testimony, panelists repeatedly recommended more funding to the criminal justice system and that the Justice Department improve its monitoring of pre-trial abuses in various jurisdictions, Cantú said.
Cantú noted that nationally, median bail amounts for a felony arrest is $10,000, but the Federal Reserve found that nearly half of Americans would not be able to pay an unexpected expense of $400.
The report cited expert testimony on how the existing system frequently fails to detain someone because they are a public safety risk, but rather because they lack the money — even $100 — to pay for cash bail. That's despite the fact that Eighth Amendment requires bail not be "excessive" to the point that a person must remain detained pretrial simply because of the cost.
"People with assets who are accused of the same or similar crimes have keys to the jailhouse door. They have their wallets," said commissioner David Kladney, who was the lead on the report, on Thursday.
The Supreme Court has noted that liberty should be the norm and detaining someone before trial or without a trial should be "the carefully limited exception."
But between 1970 and 2015, people detained prior to any trial increased 433% across the U.S. Now, nearly three-fourths of the 631,000 people held in U.S. jails every day have not been convicted of a crime and are awaiting trial, the report states.
Research has also found that people of color may be more likely to be viewed as dangerous and therefore have higher bond amounts imposed or be denied bail entirely. But a 2018 study found that white defendants granted pretrial release were 22% more likely to be re-arrested prior to their case being finalized than Black defendants.
Republican commissioners criticized the report as primarily one-sided and less focused on public safety.
Commissioner J. Christian Adams, for example, voted in favor of the report because of its effort to include some opposing voices. But Adams said the report focused "almost exclusively on the plight" of arrestees, and spent little time on the "interests of the law abiding in public safety." Meanwhile, commissioner Peter N. Kirsanow dissented entirely, calling the report the "worst" issued in his tenure.
The commission conducted case studies of pretrial and bail policies in six jurisdictions that have implemented or are working on reforms: New Jersey, Illinois, Texas, New York, Nevada and the District of Columbia. It found that there was no one-size-fits-all approach to reforming cash bail.
In Texas, many of the reforms were driven by litigation rather than legislative action.
In New Jersey, however, bail reform legislation was approved by the legislature, essentially eliminating money bail in the state, and went into effect in Jan. 1, 2017. As a result, the state's pretrial population dropped nearly 44% to 4,995 people between December 2015 and December 2018. Judges were also provided a new risk-based tool to determine "dangerousness" of a defendant and if a person's ability to post bond.
Even so, Black defendants have continued to make up the majority of the jail population. Reform advocacy groups have expressed concern that the risk assessment tool may be racially biased.
Bail reform efforts have been hindered by the issue's complexity and the fact that the hearing is not considered part of the criminal process.
While some advocates have proposed getting rid of it entirely, others worry that doing so will lead to increased crime or defendants who don't show up to court. Others argue that even nonmonetary conditions for release – such as community supervision, electronic monitoring, or having to attend treatment services, educational or employment programs – can become more costly and burdensome.
The report cited one academic study in which defendants with counsel at bail hearings were more likely to be released on their own recognizance, more likely to have their bail reduced and more likely to be reduced within a day of their arrest. But unlike in criminal prosecutions, there is no right to counsel for bail hearings, which are typically heard by magistrate judges without an attorney present.
A defendant's decision on whether to take a plea deal is also "considerably tied" to their ability to post bail rather than their culpability, and it can especially impact those accused of relatively minor offenses, the report states.
"Defendants who are required to post bail that they cannot afford may end up pleading guilty to avoid waiting in jail," according to a Michigan Law Review article. "If the sentence offered by the prosecutor in a plea deal is shorter than the expected wait for trial or bail review, all but the most stubborn of defendants would plead guilty."
Meanwhile, a 2013 report on "The Hidden Costs of Pretrial Detention" found that jailing low- and moderate-risk defendants, even for a few days, strongly correlates to higher rates of new criminal activity during their pretrial period and after the case has been heard. The longer individuals were detained, the higher their likelihood of later recidivism.
It's unclear why this may be the case, but experts have posited that it may be due to the cost of such pretrial detention, for example, the loss of a job, housing or resulting family problems.
Beyond failing to provide recommendations and findings, the gridlock commission also was unable to garner the necessary majority to continue its work examining the impact of COVID-19 on minority voting rights. The work was supposed to update a 2018 report that found minorities and people with disabilities are disenfranchised more than any other demographic.
Yaki placed the blame at the feet of the newly Trump-appointed commissioners.
"The first action that the conservatives took was to kill a report – much less findings and recommendations – on voting rights that took over a year and a half of investigation and testimony," Yaki wrote in an email to USA TODAY.
The commission is set to vote on possible topics to research for 2022 on Friday, though discussions have been stalled along party lines thus far, Rorison said in an email.
This article originally appeared on USA TODAY: Cash bail: Civil Rights Commission fails to make reform recommendation