The Bail Trap

Some 40% of Americans can’t cover a $400 emergency expense, according to a federal survey conducted earlier this year. If they don’t have access to credit, they’d have to borrow from family or friends. If they have tapped out those resources, then bills go unpaid, utilities get shut off. Sometimes that $400 bill starts a financial downward spiral that ends in eviction.

The documentary The Bail Trap: American Ransom, shown at the library last week in a program hosted jointly by the town’s Justice in Action Committee and the NAACP of Chapel Hill-Carrboro and Northern Orange County, gave us a glimpse into the lives of people who had to come up with bail unexpectedly and the lasting financial impact that expense had on their lives.

Bear in mind that anyone can get arrested for anything, including fitting the description of a suspect.

When you are arrested, you stay in jail until you are arraigned, at which time the magistrate does one of the following: 1) releases you on your own recognizance (you promise to return for your court date, and your word is good enough); 2) releases you to the custody of someone else (their word is good enough); 3) sets bail (you’ve got to back your word with significant money); or 4) holds you in jail without bail (no amount of money is sufficient to believe you will return).

Bail might be anywhere from $1,000 to $1 million or more, depending on, among other things, the severity of the crime and your risk of flight. If you have cash for the entire amount, you pay it to the court and, after all your court dates are done, you get it back in full, regardless of whether you are found guilty or acquitted. All you’ve lost is the cash’s earning power.

If you don’t have the full amount, you can use a bail bondsman who will charge 10% of the bail; even if you show up for all of your court dates, he keeps the money. If you skip out, whoever signed your bail bond contract is on the hook for the entire amount of the bail.

You can choose to stay in jail, but as court dates are scheduled weeks or months away, likely you would lose your job, and unless you had someone to pay your rent or mortgage, you might well lose your housing.

Following the film, a retired judge, a defense attorney, a county commissioner and a formerly incarcerated man discussed bail aspects specific to Orange County, where the policy is to use bail sparingly. But judges, who are elected, tend to err on the side of keeping suspects in custody lest they appear soft on crime or someone they release commits a heinous act while awaiting a court date. Yet states that have moved away from bail find that as many people return for their court dates as those in states that overuse bail.

Given the punitive impact of bail on low-wealth residents, I’d like to see judges shift away from imposing bail for people with strong ties to the community and a lack of prior record.
— Nancy Oates