Poor people, especially people of color, face a far greater risk of being fined, arrested, and incarcerated than other group of Americans. As mass incarceration has taken root and the bail industry’s influence has grown, more people are being held before trial simply because they can’t afford to pay bail. In fact, people detained pretrial account for 95% of all jail growth since 2000. Pretrial detention can set off a chain reaction of hurdles including lost employment, housing instability, higher conviction rates, and harsher sentencing outcomes.
Pretrial detention creates devastating, long-lasting affects that touch every marginalized community we strive to empower and protect. The simple inability to pay cash bail hurts the very things that help someone charged with an offense succeed: employment, stable housing, and strong family and community connections. Cash bail tears apart families, uproots lives and destabilizes communities.
An uneven playing field; unfair sentencing outcomes:
Everyone deserves an equal chance at freedom. Research shows people held pretrial experience harsher case outcomes than compared to those able to secure their own release. This unequal treatment—freedom for those with money, jail for those without—is neither fair nor effective.
WHY?: Pretrial detention poses a systemic disadvantage to people without available funds to post bail. It’s challenging to meet with an attorney or adequately prepare for trial from behind bars. Prosecutors are more likely to recommend a shorter sentence to someone who was free prior to trial, and willing to participate in a diversion program in the comfort of a community setting. Judges tend to favor probation or an alternative sentence for people who are not already in custody. For these reasons, people held pretrial are:
- Four times more likely to receive a jail sentence—A 2013 study of cases in Kentucky found that even when controlling for other factors such as charge type, demographics, and criminal history—people detained pretrial were four times more likely to receive a jail sentence.
- Three times more likely to receive a prison sentence—The same study found that people were three times more likely to receive a prison sentence if they were held during the pretrial period than those released.
- Plead guilty despite their innocence—Thousands of people accept plea deals in a desperate exchange for their freedom. A 2016 study found pretrial detention to be the, “strongest single factor influencing a convicted defendant’s likelihood of being sentenced to jail or prison”.
The pain of our unjust pretrial system is magnified for people of color, individuals with disabilities, members of the LGBTQ+ community, women, youth, and immigrants.
People of Color
- The racial disparities in Ohio are stark. As of 2015 Black people comprised only 12% of Ohio’s overall population, but represented 35% of the total jail population in Ohio. (Vera Incarceration Trends)
- Numerous studies have found that controlling for all other factors, people of color receive higher cash bail amounts than white defendants and also longer stays in pretrial detention—simply because of the color of their skin.
- People of color jailed pretrial also make less than their white counterparts, making it even harder to post cash bail.
- Black people in jail who were unable to post cash bail earned just $0.65 prior to detention for every $1 jailed white people earned. Hispanic people earned $0.95.
- When assessing a person’s likelihood of reappearance, courts often look at the person’s age of first arrest—but that is a close proxy for race, since people of color are targeted for arrests at disproportionate rates than their white counterparts.
Individuals with Disabilities
- Rates of people with disabilities in the criminal legal system are incredibly high.
- People in jail are four times more likely to have disabilities than people in the general population, and more than half of people in jail have psychiatric disabilities.
- Without support, sometimes it is harder for people with disabilities to understand and comply with bail conditions.
- People with disabilities are often stereotyped as dangerous or unreliable to comply.
- For people who receive SSI (Supplemental Security Income) and live on a very tight budget it can be especially hard to afford money bond amounts.
- SSI may be interrupted during periods of detainment, and people may be required to pay back payments received during detainment, which can have long-term consequences. (source)
- The Vera Institute refers to jails as the “front doors to incarceration.” If jails are the front door, then police are the walkway to that door. Each day police officers use their discretion to decide who they will arrest and take to jail, and there is a clear discrepancy between how people of color and white people are policed.
- Police departments have the authority to decide whether certain offenses are eligible for citation-in-lieu-of-arrest—but many simply arrest for every offense, trapping more and more people in our broken pretrial system.
- Police officers make decisions each day on whether or not to arrest someone, and we know that racial bias manifests itself in these decisions. Police officers are statistically more likely to arrest people of color for the same crimes as their white counterparts.
- The incentive to make a profit can worsen these disparities. In some towns police issue excessive traffic citations to people to create revenue.
- Racial bias also manifests itself in police department’s bigger decisions, like about where to deploy large numbers of officers. More officers are deployed to suppress—rather than protect—communities of color.
- Given the stigma the LGBTQ+ community faces, it can be harder for LGBTQ+ people to raise bond money from places people often turn to, like their family or churches.
- Jails are unsafe for many people, and for transgender women, jail poses a substantial threat to their livelihood. Transgender women in custody face hugely disproportionate rates (12 times greater) of sexual assault: 60% will be sexually assaulted while they’re locked up. Given this figure, it is especially important that transgender women awaiting resolution of their case be released, unless a judge’s individualized determination shows otherwise.
- Women’s incarceration in Ohio is growing at a higher rate than men’s incarceration, and jails are a major driver of this growth. In Ohio between 1970 and 2015, the rate of women in jail increased by more than nine times. During this same period the rate of men in jail increased by two times. (Vera Incarceration Trends)
- Nationwide, 79% of women in jail are mothers with young children—many of whom provide primary or sole care to their children—and 5% of women admitted into jails are pregnant.
- Jailed women earn less than jailed men, thus are less likely to afford money bail.
- Prior to detention, jailed women who were unable to post bail earned $0.71 for every $1 jailed men earned. The income disparities are starker for women of color. Jailed Black women earned $0.58; jailed Latinas earned $0.78; and jailed white women earned $0.83 for every $1 jailed men earned.
- It is often women who absorb the financial costs, including bail, attorney fees, and court fines and fees, when a family member is incarcerated.
- Detained youth refer to young people awaiting a hearing, sentence, or placement in a residential or detention facility. In Ohio, hundreds of young people are detained in a restrictive setting before they’ve been formally charged—a majority apprehended for low-level, nonviolent offenses. People under the age of 18 are not eligible for bail in the state of Ohio. Youth in detention are required to remain incarcerated until their next scheduled court date or placement order enacted by the judge.
- Nationally, 4,000 youths are detained for technical violations of probation conditions or for status offenses, which are behaviors that are not law violations for adults.”
- For almost a quarter of all youths in juvenile facilities, the most serious charge levelled against them is a technical violation (18%) or a status offense (5%).
- A technical violation can range from simply failing to report to a probation officer, attempting to run away, incomplete community service requirements to falling short on follow up with referrals. These minor violations can result in long stays in restrictive, detrimental prison-like detention environments. Almost half of youths held for status offenses are there for over 90 days, and almost a quarter are held in the heavily restrictive juvenile facilities.
- Depending on the severity of the alleged offense, young people can be transferred to adult courts in a phenomenon known as bindover. Youth bound over to the adult system are then eligible bail. However, bound over youth continue to suffer harms of pretrial detention given relative age of arrest and limited access to finances. Youth become vulnerable to abuse, neglect, and trauma when housed in adult facilities.
- A third of people in U.S. immigration detention are locked up in county and city jails. Immigration bond amounts are set by U.S. Immigration and Customs Enforcement (ICE); while immigration judges have the ability to reevaluate bond amounts at hearings, many immigrants do not have access to legal counsel to advocate for an appropriate reduction. Immigration bond does not permit deposit amounts, requiring thousands of dollars of payment in-full to release an individual. There is no limitation to the length of pretrial detention for immigrants.
- In 2018 ICE had not returned over $204 million in bond money.
To learn more about all our work, please visit the ACLU of Ohio’s homepage.