The row house on Cecil Avenue was just like any other in the rough-and-tumble East Baltimore neighborhood where Rafiq Shaw lives. But one chilly day in December 2015, he had the bad luck to be walking by right as the police were getting ready for a raid.
“All out of the blue a bunch of police cars pulled up and grabbed me,” Shaw told me in September. “They threw me to the wall and put cuffs on me.” The officers insisted he had come out of the house, which Shaw just as vehemently denied. “They thought I was someone else,” he said. “That’s what they thought the whole time. They called a name out that wasn’t me.”
Shaw is a tall, heavyset thirty-one-year-old black man with a booming voice and an easy smile. He told his story almost cheerfully, emphasizing the absurdity of the harrowing situation he was describing.
Over his protests, Shaw continued, the police dragged him into the house, where a woman inside told the officers she had no idea who he was. The officers pushed him onto a couch and went through his pockets, finding the keys to his mother’s car, parked nearby.
Later, at his trial, in August 2016, officers would testify that Shaw consented to a search of the car. (Shaw told me he didn’t.) They also claimed to smell marijuana, although the doors were shut and the windows were up. Shaw’s attorney, Maryland public defender Angela Oetting, said that’s a claim Baltimore cops often use to justify searches of her clients.
The police did not, in fact, find marijuana in the car. But they did claim to find a gun, stashed in the glove compartment. It was a discovery that stunned Shaw, who said he has never owned a gun. “And this was my mom’s car,” he added. He was arrested and charged with two offenses: illegal possession of a handgun and possession of a handgun in a vehicle on a public road, punishable by up to three years in prison.
Police had no evidence, such as fingerprints, to prove the gun was Shaw’s. He didn’t even have a key to the glove compartment; the cops had to smash it open. After less than a half an hour of deliberation, the jury found Shaw innocent on both counts.
But Shaw is still paying for the crime he never committed. He’s on the hook for the $10,000 his family agreed to pay the bail bondsman who got him out of jail two days after his arrest. In Maryland, as in the many other jurisdictions that rely on private bondsmen and a money bail system, bail arrangements are private contracts, unrelated to court outcomes. Innocent, guilty, or charges dropped—as often is the case—the bondsman still collects his fee. “It’s crazy,” Shaw said. But it’s the inevitable result of a privatized pretrial system dependent on a commercial bail bond industry.
The stated purpose of cash bail is to ensure that defendants show up in court and that dangerous people stay off the streets. By requiring some amount of money up-front and threatening further cash penalties, defendants are motivated to comply. Or so the theory goes. But it’s increasingly clear that cash bail doesn’t accomplish these goals either fairly or efficiently, and that alternatives that don’t require defendants to pay for their release are actually more effective. In the large swaths of the country that still rely on cash bail, it’s all too often the poor—not the dangerous or delinquent—who remain behind bars when they can’t afford to purchase their freedom. Those who do pay bail, like Shaw, often find themselves in another kind of prison: shackled for months or years to a debt that hobbles their opportunities to get ahead. And it’s the government, prodded along by a powerful bail lobby, that enables the industry’s privileged position by providing a steady stream of clients, by protecting the industry’s right to collect, and by unthinkingly setting bail amounts that leave defendants little choice but to finance their freedom with a bondsman.The stated purpose of cash bail is to ensure that defendants show up in court and that dangerous people stay off the streets. But it’s all too often the poor—not the dangerous or delinquent—who remain behind bars when they can’t afford to purchase their freedom.
In Shaw’s case, the district court commissioner who handled his arraignment set bail at $100,000. His fiancée and his mother scraped together what they had, and Shaw cleaned out his meager savings. They gave it all to their bail bondsman, who agreed to bail Shaw out—to be his “surety”—for a fee of 10 percent, or $10,000. Shaw and his family said they paid the bondsman about $2,000 up front, with a promise to pay $100 a week until the amount was paid in full. Shaw earns $10.15 an hour installing trailer hitches for U-Haul. “I’ll be paying for a long time,” he told me. “Like forever.”
Baltimore Discount Bonds operates out of a storefront right next to the Baltimore Central Booking and Intake Center, on Eager Street downtown. It’s one of more than 200 bail bondsmen advertising in the city’s yellow pages and online.
One reason Baltimore’s for-profit bail bond industry is thriving is the sheer number of arrests every day. From January 1 to September 30, 2016, Baltimore police made 19,905 arrests, including 2,136 in September alone—an average of seventy a day. Most of those arrested were young black men.
Nor is Baltimore an outlier in the zealousness—or overzealousness—of its police force. Thanks in part to “zero tolerance” policies and other crackdowns across the country, police made about 10.8 million arrests in 2015, according to the Federal Bureau of Investigation’s Uniform Crime Reporting Statistics. Only a fraction of these arrests result in prosecutions, let alone in trials or convictions. Some of this has to do with the lack of capacity on the part of prosecutors to keep up with the flood of arrests. But in Baltimore, at least, many arrests are simply unwarranted to begin with. According to a 2016 investigation of the Baltimore Police Department by the U.S. Department of Justice, local prosecutors threw out more than 11,000 charges between 2010 and 2015 “because they lacked probable cause or otherwise did not merit prosecution.” The Justice Department concluded that Baltimore police habitually engaged in unconstitutional stops, searches, and arrests, often disproportionately targeted at minorities. Justified or not, these arrests are a principal source of traffic at the Baltimore city jail.
Adding to the scrum at central booking is another peculiarity of Maryland law: the ability of any citizen to file a complaint with a district court commissioner if police or prosecutors don’t investigate. According to a report by the state of Maryland, more than four in ten of the warrants issued by district court commissioners in 2012 were based on citizen complaints, which require no investigation beyond a sworn statement by the complainant.
All of these arrests are a great source of business for Baltimore’s bail bondsmen, who are a fixture in the city’s urban landscape. “Finding a bail bondsman is like finding a barber or a grocery store,” said Greg Carpenter, the founder of 2AM Bakery, a Baltimore business that rehabilitates ex-offenders. “Where crime is really prevalent and people are going to jail every day, bail bondsmen are as common as anything else.”
Competition is fierce. Despite a statutory prohibition on soliciting business near jails, bondsmen prowl the turf near central booking, looking for desperate loved ones of people in lockup. Shaw’s fiancée, Destiny, told me she was approached by several bondsmen when she went to visit Shaw immediately after his arrest. “A lot of people come up to you and say, ‘I’m a bail bondsman,’ ” she said. “It’s a hustle for them.”
Still, it pays to choose the right bondsman. Maryland law caps the fee a bondsman can charge at 10 percent of bail. Some bondsmen try to undercut the competition with “discounts” on their fees. Others offer financing with just 1 percent down. Shaw’s fellow inmates recommended a bondsman who was reportedly cheap—but in Annapolis. Unable to make the trip, Shaw’s mom and fiancée chose the option closest to the jail, the ironically named Baltimore Discount Bonds. The price they paid is like the price you get when you buy gas at the last station before the highway.
Bail bond contracts, like the one the Shaws signed, tend to follow a similar formula. They provide that the fee charged—the “premium”—is “fully earned” and “not refundable” once a person is released. They also often give bondsmen full access to all aspects of a bailee’s personal life. At Lexington National, for example, one of the nation’s largest bail bond companies, the standard contract available online gives the bail agent access to all “credit reports, Social Security Records, criminal records, civil records, driving records, tax records, telephone records, medical records, school records, worker compensation records, and employment records,” as well as the right to “attach a location tracking device on any vehicle owned or driven” by the bailee.
Shaw’s mother, Rosetta Wise, told me she is the principal guarantor on her son’s bail contract. She said the bondsman calls her every few weeks, threatening garnishment if the debt isn’t paid. Once, Shaw said, the bondsman came to offer a deal: $2,000 now to wipe out the debt. They couldn’t afford it.
Wise has been covering the last several months of payments while Shaw and Destiny try to get back on their feet. Shaw continues to work at U-Haul, and Destiny works in the flower shop and the deli at a local supermarket, but her schedule is unpredictable and her hours have been cut back. Complicating matters further is that they have a new baby, Kay, who was four months old at the time I met Shaw.
In mid-September, I visited them at their home, a dilapidated Section 8 first-floor apartment in East Baltimore with a bodega in the basement. The living room had a couch against one wall, an armchair, and a baby swing, where Kay was napping in a fuzzy pink and purple polka dot sleeper. A flat-screen TV, tuned to Disney Junior, was the sole indulgence. There was one window, and no pictures hung on the beige-gray walls that may once have been cream. “There’s no way I can pull it off,” said Shaw of the $100 payments he owes each week.
But it bothered him that his mother is paying the bondsman, and it was a clear source of tension between his mother and Destiny. In a speakerphone call while I was there, Shaw’s mother and his fiancée started disputing who paid what and how much. “You see what bail does to a family?” Shaw said.
Bail bondsmen call the fees they charge “premiums” in part to justify their non-refundability, but also because they argue that what they’re providing is “insurance.”
“Bail is similar to homeowners’ or auto insurance,” said Jeff Kirkpatrick, a bail bondsman in Jackson, Michigan, who is also executive vice president of the Professional Bail Agents of the United States, a trade association. “Say you went to jail for shoplifting or larceny and the judge set your bail at $10,000,” Kirkpatrick told me. “In most states, you would pay 10 percent to 15 percent of that bond amount as a premium. In return, the bond agent is guaranteeing the court that should you fail to appear and the bail agent failed to produce you, they would pay the court that $10,000.”While shows like Dog the Bounty Hunter have popularized the idea of fearless bondsmen on the hunt for dangerous suspects, real-life bail bonding has more in common with the sketchier side of the financial services industry than with law enforcement.
In truth, the “premiums” paid by defendants cover the fees that bail agents themselves pay to large insurance companies to guarantee payment on a bail bond. If somebody jumps bail, a bondsman calls on his insurer; he doesn’t put up the cash himself or deed over his house. Bondsmen are essentially brokers for these bigger firms. In Rafiq Shaw’s case, for example, his court files indicate that the surety of record is Crum & Forster Insurance, a subsidiary of a Toronto-based international conglomerate, Fairfax Financial Holdings Limited. Crum & Forster is one of fourteen national insurance companies and several regional insurance companies that specialize in cash bail. Many of them are members of the American Bail Coalition, another trade association for the bail industry.
The profit a bondsman makes is the difference between the premiums charged to a defendant and the premiums the bondsman has to pay the insurance company. That gives bondsmen an incentive to ensure that their clients show up in court: forfeiting a bond would have the same effect on their insurance as totaling a car. Kirkpatrick argued that this aspect of his business is a public service. “The bail agents do all the work they do at no cost to the taxpayer,” he said. “It’s one of those public-private partnerships that work really well. We’ve done a very good job of making sure that suspects appear.”
But the biggest “risk” bondsmen seem to assess is whether defendants can pay their premiums. While shows like Dog the Bounty Hunter have popularized the idea of fearless bondsmen on the hunt for dangerous suspects, real-life bail bonding has more in common with the sketchier side of the financial services industry than with law enforcement. The website of the Professional Bail Agents of the United States includes a page titled “How to Become a Bail Agent.” Half of the text is about choosing an insurance company to back your bail bonds; there is nothing about physical risk. “The bail profession is probably more about whom you know (or rather who knows you) than what you know,” the site says.
Moreover, police officers are often the ones who end up doing the work of finding defendants who jump bail. “Of those that fail to appear, it’s not bondsmen who bring them in,” said Steve Chin, a pretrial services officer in Mesa County, Colorado, and spokesman for the Colorado Association of Pretrial Services. “Ninety percent of them are being arrested by law enforcement. The only ones I see bondsmen bring in are the ones who’ve made an agreement with a bondsman for a fee and didn’t pay it back.”New research finds that alternatives to money bail work better to ensure that defendants show up in court. One study found that “unsecured” bonds, which require no money up-front but are due in full if someone skips town, are just as effective as traditional cash bail in ensuring court appearances and preventing rearrests.
Nonetheless, the bail industry has worked hard to insulate its position by pursuing and winning favorable legislation in the states. For example, while some states, like Maryland, cap premiums at a fixed percentage, other states also set a minimum amount, eliminating room for price competition. In Virginia, for example, state law requires that bail bondsmen “shall not charge a bail bond premium less than 10 percent or more than 15 percent of the amount of the bond.” Some states have also passed laws requiring judges to set money bail for certain kinds of offenses, such as domestic violence, thereby foreclosing judges from other options, such as release on personal recognizance. For example, until the recent passage of bail reform legislation that goes into effect next year, New Jersey required money bail for eighteen offenses, including murder and kidnapping but also resisting arrest, theft by extortion, and “corrupting or influencing a jury.” Many jurisdictions also rely on “bail schedules” that require fixed amounts of bail for particular offenses with no discretion for judges. In Los Angeles County, for example, a charge of first-degree robbery carries a mandatory bail of $100,000. Other states grant bondsmen grace periods of up to two years before a bond is fully forfeited. In Florida, for example, bondsmen have up to two years to produce a no-show before they forfeit a bond. Even if the police happen to pick up a fugitive on a bench warrant, the bondsman still gets a refund if he “substantially attempt[ed]” to find a defendant.
Many of these industry-favorable laws were passed during the 1990s as the result of an extensive effort by the conservative American Legislative Exchange Council to promote the bail bond industry. The ALEC website still includes model legislation for a variety of pro-bail bills, including variants of the legislation passed by New Jersey to require bail for certain offenses (the Alternative Method of Court Appearances Act and the Crimes with Bail Restrictions Act); a replica of the Florida legislation providing a grace period for bondsmen to track down bail jumpers (the Bail Forfeiture Relief and Remissions Act); and a proposal requiring the expiration of bail bonds after thirty-six months (the Bail Bonds Expiration Act).
No one really knows how big the commercial bail bond industry is in the United States. Some of the nation’s largest bail bond insurers are either foreign owned, such as Crum & Forster, or privately held, such as the American Surety Company, whose president is also chairman of the American Bail Coalition. A 2012 study by the Justice Policy Institute estimated that the industry writes roughly $14 billion in bail bonds per year, and the Professional Bail Agents of the United States says that there are about 14,000 bail agents nationwide.
“If I just wanted to make a lot of money, I’d get into the bonding business,” said Cherise Fanno Burdeen, executive director of the Pretrial Justice Institute, a nonprofit research and advocacy group that opposes the use of cash bail. “It’s high profit and almost zero risk.”
Many defendants, however, can’t afford a bail bondsman’s services. Instead, they stay in jail until trial. It’s the flip side of the damned-if-you-do, damned-if-you-don’t nature of a criminal justice system that runs on money bail.
In fact, the majority of people currently in the nation’s jails are defendants legally presumed innocent and awaiting trial. According to the U.S. Bureau of Justice Statistics, 467,500 of the nation’s 744,592 jail inmates in mid-2014—or 63 percent—were “unconvicted” defendants in pretrial status, up from roughly 56 percent of the nation’s 621,149 jail inmates in 2000. Most are unlikely to commit new crimes or fail to show up in court. According to a 2015 survey by the National Association of Counties, 69 percent of county jail administrators judged the majority of their inmates to be “low-risk” defendants.
One reason for the rise in pretrial inmates is a rise in the use of money bail. The Bureau of Justice Statistics reports that judges set money bail on two-thirds of felony defendants in 2004, compared to half in 1990. Much of the time, the bail amounts are too high for a defendant to afford, even with the help of a bondsman. According to the same Bureau of Justice Statistics report, just one in ten defendants with bail set at $100,000 or more was released, compared to seven in ten for defendants facing bail of $10,000 or less. One study of defendants in Harris County, Texas, found that 39 percent of felony defendants with bail of $2,000 or less couldn’t afford to get out, as well as 22 percent of misdemeanor defendants with bail of $500 or less.
The inability to afford bail can have serious collateral consequences for defendants. For example, research by the Laura and John Arnold Foundation found that people detained pretrial were more than four times more likely to be sentenced to jail than people who were released, more likely to be given longer sentences, and more likely to be recidivists. People in jail are less able to meet with their lawyers, point them toward important witnesses, and put together the best defense. The disruptions resulting from staying in jail might mean the loss of a job or housing, which leads to economic instability or other consequences that could prompt a rearrest. People in pretrial detention are also more likely to plead guilty before the trial, because that might be the only way to avoid spending months or years in jail awaiting their time in court.
In Baltimore, defendants who can’t make bail within twenty-four hours of their arrest are entitled to a bail review hearing, which takes place every morning at 11 at the district court on Wabash Avenue. At the hearing, a judge reviews the district court commissioner’s initial bail determination to decide if the bail amount should be changed. Similar proceedings take place in many other jurisdictions around the country, and in Baltimore, at least, the result is yet one more level of capriciousness in the cash bail system.
While hearings take place in district court, the defendants are still in lockup at central booking. They appear in court via video on a screen at the left wall of the courtroom. This means that defendants who have questions for their attorneys can’t confer with their counsel in private. The resolution is grainy, and what you see are about a dozen men in yellow jumpsuits, mostly black or Hispanic, seated four at a time in rows of folding chairs with one empty chair up front.
Individual faces are too difficult to make out—which is perhaps fitting, given the routinized nature of each hearing. Under Maryland law, the judges who hear bail reviews are supposed to consider a variety of factors in deciding the conditions of a defendant’s release. These factors include not just the nature of the crimes charged, but also the defendant’s family ties in the area, work history, and prior record of appearances, as well as the recommendation of pretrial services, prosecutors, and the defendant’s own attorney. But within this structure, judges have immense discretion.
“It matters so much who the judge is,” Baltimore assistant public defender Nila Bala, one of the attorneys assigned to bail reviews, told me. “That matters more than anything else—more than the client, the charges, me, the state’s attorney, or any other factor. And the judges vary widely in what they will do in certain cases.”
To defend her clients, Bala drives to central booking at 7:30 every morning to interview the clients who are due for their hearings that day. She has about an hour to speak to her dozen clients before she jumps back in her car to get to the courthouse on time. If she’s lucky, she has spent ten minutes with each of them—most of it spent shouting on a phone through a glass partition, surrounded by other lawyers and their clients all doing the same thing. Bala said her goal is to persuade the judge to reduce her clients’ bail—or at least not increase it.
But on this day in September, her victories are few.
Judge Kent Boles, who is presiding today, calls a defendant on the screen, who shuffles toward the empty chair up front. Boles recites the charges and asks if the defendant understands the crimes he’s been accused of committing. After a rapid-fire rundown of the defendant’s address, education level, and prior record by a representative of pretrial services, the state’s attorney argues to maintain the current bail or even increase it, based on statements provided by police and witnesses. The defendant’s attorney then has a chance to respond. Much of what’s presented at these hearings is hearsay evidence that would likely be inadmissible at trial, but no objections or cross-examinations are permitted. Each hearing takes about ten minutes.
First up is Michael Atkinson, who faces four charges of first-degree assault, second-degree assault, and conspiracy to commit assault. His bail was initially set at $50,000, and pretrial services notes a failure to appear from 2004. Bala points out that this occurred more than a decade ago and asks for a reduction in bail to $10,000. The request is denied.“If I just wanted to make a lot of money, I’d get into the bonding business,” said Cherise Fanno Burdeen of the nonprofit Pretrial Justice Institute. “It’s high profit and almost zero risk.”
Next up is Khourtney Woodard, charged with possession of drugs with intent to distribute and currently held without bail. Bala’s colleague, public defender Elizabeth Whitman, argues that a defendant who is arrested for nonviolent drug violations, and who is a lifelong resident of Baltimore and unlikely to flee the city, should be allowed to bail himself out.
A few minutes after Whitman makes her case, the judge reduces Woodard’s bail to $500,000—a meaningless reduction for an indigent defendant.
The cases quickly take on a numbing sameness.
Emmanuel Rose. Armed robbery, second-degree assault, and theft of less than $100. Initial bail: $100,000. No reduction.
Samuel Faust. Handgun on person. Initial bail: $200,000. No reduction.
In one case, Boles reduces bail from $50,000 to $25,000. The defendant is Amir Barnes, who is charged with possession with intent to distribute. Bala argues that Barnes has no prior record and was caught with only ten grams of marijuana.
Court records show that Barnes was later able to bail himself out. The surety of record: Lexington National, one of the nation’s largest commercial bail companies.
Under a system of cash bail, a defendant’s pretrial freedom is largely a function of his wealth—not about the risk of reoffending or failing to show up in court. Judges might set higher bail amounts for defendants they perceive as higher risk—on the theory that they won’t get out—but demanding a cash ransom is a poor way to protect public safety. Indigent defendants who can’t afford even token amounts of bail stay trapped in jail as if they were high-risk suspects likely to commit new crimes or flee. Meanwhile, a murderer with money could be out on the streets. The only ones who profit from this inefficiency and injustice are the bondsmen.
There is a simple solution to the myriad of problems caused by money bail: Abolish it.
What happens instead to defendants awaiting trial should depend on their actual risk to public safety and the odds of their being a no-show in court. Under a “risk-based” system such as this, judges first decide whether a defendant is safe enough to release pending trial. Dangerous defendants stay in, while lower-risk defendants get out. The conditions of release for these lower-risk defendants, however, would depend on the likelihood of their flight or rearrest. For example, some defendants might be required to check in weekly with a pretrial services officer, while others might simply be released on their own recognizance. Still others might be required to post a money bond, but the amount would depend on their ability to pay.
The states that have already moved or are moving to such a risk-based system are Kentucky, Colorado, Alaska, and New Jersey, all of which have recently passed or are implementing bail reform legislation that would dramatically reduce, if not end, the use of cash bail. In November, New Mexico voters approved a constitutional amendment prohibiting the detention of defendants solely because of their inability to pay bail.
(In the District of Columbia—which long ago effectively eliminated money bail—the pretrial justice system has come under fire for high-profile mistakes in releasing defendants due to what the Washington Post editorial board characterized as the lack of “a sound system that uses reliable data to assess risks.”)
One factor driving this current wave of bail reform is new research finding that alternatives to up-front money bail work better to ensure that defendants show up in court. A 2013 study by the Pretrial Justice Institute, funded by the Department of Justice, found that “unsecured” bonds, which require no money up-front but are due in full if someone skips town, are just as effective as traditional cash bail in ensuring court appearances and preventing rearrests. In a controlled experiment in Colorado, defendants released on an unsecured bond, regardless of their risk, were less likely to commit new crimes than defendants released on traditional money bail. And all but the highest-risk defendants were more likely to show up in court.
A 2011 study funded by the Justice Department also found that simply mailing defendants a reminder to show up in court significantly reduced the number of people who failed to appear. In an experiment involving more than 7,800 misdemeanor defendants in Nebraska, only 8.3 percent failed to show up after getting a mailed reminder about their court date, along with information about what would happen if they failed to show. By comparison, 12.6 percent of defendants who got no such reminder were no-shows.
A second factor driving bail reform is the emergence of new evidence-based tools—known as “risk assessment
instruments”—to help judges decide whether a defendant should be released into the community and on what conditions. These instruments are helping to make a “risk-based” alternative to cash bail viable.
In Colorado, for example, which passed bail reform legislation in 2013, many judges now use the Colorado Pretrial Assessment Tool (CPAT), a twelve-question matrix that assesses a defendant’s risk of flight and danger to the community using such variables as age of first arrest, prior failures to appear, and current mental health issues or alcohol and drug problems.
Although Colorado still has a commercial bail bond industry, it has shrunk dramatically since the passage of the new law, said Steve Chin of the Colorado Association of Pretrial Services. In Mesa County, where Chin works, the use of traditional money bail fell from 65 percent of cases in 2011 to 39 percent in 2014 without any increase in rates of failures to appear or new crimes committed by defendants released into the community.
A third factor driving reform is that states are realizing how expensive it is to house all these inmates awaiting trial, especially when so many of them are “low-risk.” According to the Arnold Foundation, the cost of pretrial detention alone is at least $9 billion a year.
Alaska, for example, passed bail reform in the spring of 2016 as part of a sweeping criminal justice reform effort after legislators saw that the state’s largest prison—the Goose Creek Correctional Center in Point MacKenzie—was already running out of room after its opening in 2012. According to a report by the Alaska Criminal Justice Commission, Alaska’s jail population was growing at three times the rate of overall population growth in the state. Much of this growth was in the pretrial population, which grew 81 percent over the last decade. This growth, the commission found, was driven by reliance on cash bail.
“Our prison population trajectory was such that we’d have to build another prison within the next four years,” said state senator John Coghill, the lead sponsor of Alaska’s reforms. With the state already spending nearly 10 percent of its budget on corrections, building yet another prison was unpalatable to lawmakers.
As a result of all this activity, momentum is growing at the national level, too. Earlier this year, California Democratic Representative Ted Lieu introduced legislation that would require states to abolish cash bail as a condition of receiving federal grant support for state and local police. In December 2015, the White House convened a conference on excessive fines and fees in the criminal justice system that also included a look at cash bail.With the help of the conservative American Legislative Exchange Council, the bail industry has worked hard to insulate its position and protect its profits by pursuing and winning favorable legislation in the states.
Aspects of money bail are also under fresh judicial challenge. A pending class action suit in the Eleventh Circuit Court of Appeals, Walker v. City of Calhoun, is challenging the constitutionality of bail “schedules” like the one in Los Angeles County. In an amicus brief filed on behalf of the plaintiff, an indigent Georgia defendant named Maurice Walker, the U.S. Department of Justice argued that “bail practices that incarcerate indigent individuals before trial solely because of their inability to pay for their release violates the Fourteenth Amendment.” And in Maryland, home to Rafiq Shaw, the state attorney general released an advisory opinion in October 2016 concluding that the state’s current money bail system could be unconstitutional, on the grounds that imposing bail defendants can’t afford may violate the Eighth Amendment’s prohibition on “excessive bail” and the Fifth Amendment’s guarantee of due process. In late November, the Standing Committee on Rules of Practice and Procedure of the Maryland Court of Appeals recommended overhauling the state’s bail system, a significant first step toward reform and one that has taken advocates years to achieve.
By eliminating cash bail, states can ensure that poverty isn’t the only reason a defendant stays behind bars, and they can end the predation of low-income defendants by a commercial bail bond industry motivated more by profit than by protecting public safety. Getting rid of money bail would also stop the absurdity of cases like Rafiq Shaw’s—where an innocent man is paying for the mistakes of prosecutors and police.
“Bail is not fair,” said Shaw, who is now working to get his arrest record expunged so he can find a better job. “I’m not guilty. The case is over.”
The era of cash bail should end too.