Mark Spencer and Dominique Grant, Georgia Recorder
January 22, 2024
Cash bail, or the requirement that you pay a sum of money to spend your time prior to trial out of jail, can range from a few hundred to hundreds of thousands of dollars.
For those unable to afford the cost, there is a multi billion dollar private industry of bail bonds that allows you to pay as little as 10% of this fee in order to secure your pretrial freedom. If your charges are ultimately dismissed or you are found not guilty, you will not get this money back making bail bonds a lucrative, albeit exploitive, industry.
This partial cost still proves insurmountable to many, leading advocates such as Women on the Rise, a group of formerly incarcerated Black women in Atlanta, to at times pay this cost to secure someone’s pretrial release. This is done by community bail funds around the country but given the high costs and logistics involved, it is not scalable and thousands of people in Georgia each day sit in jail unable to buy their pretrial freedom. While the eighth amendment requires bail be set at an affordable level, this practice of wealth-based detention remains widespread.
Not everyone is eligible for pretrial release, but for those who are, why require money at all? The argument goes that without cash bail, people released pretrial are less inclined to show for their trials and crime will rise if more people, seen as potential criminals despite their legally innocent status, are free. Despite the rhetoric, these assumptions are not backed by evidence. Senate Bill 63 not only purports to solve a problem that doesn’t exist, but ignores the multitude of harms incarceration has on individuals, families, and communities all while committing resources to pretrial detention that are sorely needed elsewhere.
It has long been said that the United States has a two tiered “justice system”. Wealth-based detention is one more iteration of the systemic inequalities baked into the American legal system. In Atlanta, where poverty and inequality are heavily racialized, it is poor and working class Black residents who are disproportionately affected. In Georgia, over 230,000 people cycle through local jails annually, with over 40,000 incarcerated on any given day. Georgia incarcerates people at a rate 50% higher than the United States average, and at a rate seven to 10 times higher than peer nations such as the United Kingdom, Canada, or France. Georgia is far and away a worldwide leader in incarceration. It strains credulity to suggest that any public safety concerns in Georgia are due to too few people in jail. This is doubly true when you realize that even short stints of pre-trial detention can increase the likelihood of future legal involvement due to its destabilizing effects. A day or two in jail can cause job loss, lost income, missed doctors appointments and medications, lost housing, and loss of parenting rights.
Cash bail also puts additional stress on Georgia’s already overextended health care systems. The incarcerated population is sicker than the average Georgian, with a higher burden of chronic disease, substance use disorders, untreated mental health conditions, and is less likely to have stable housing or health insurance.
The results are horrifying and sadly predictable. Look no further than Fulton county, where ten people died in 2023 including Shawndre Delmore, Samuel Lawrence, and Alexander Hawkins. These three individuals were trapped, unable to afford their pretrial freedom. Deaths in jails are not isolated to Georgia’s largest county but have plagued other locations including Dekalb, Cobb, and Chatham. Nationally, jail deaths are on the rise and troublingly, the government does not even know how many people die in its jails or why. Many of these deaths occur within days to weeks of detention, with over half occurring within the first month.
Georgia is far from the first state to wrestle with the politics of pretrial detention. In Harris county Texas, a federal judge ruled in 2017 that the entire cash bail system was “violating equal protection rights against wealth-based discrimination and violating due process protections against pretrial detention.”
This led to an overhaul of the cash bail system, reducing its use significantly. These reforms reduced the percentage of those re-arrested within a year of their original arrest, meaning less cash bail led to more public safety. Extended analysis showed a decline in misdemeanor defendants charged with a new crime at three years. Likewise in Philadelphia, a decrease in the use of cash bail resulted in no difference in rearrest or failure to appear rates. Another study showed a decrease in those re-arrested pretrial, mirroring the findings from Harris county. In New York State, following a number of bail reforms and rollbacks, multiple studies concluded that there was no change in re-arrest rates, including most recently an October 2023 report showing no change in re-arrest within two years. Additionally, court appearances in fact increased.
These are three case studies in a growing mountain of evidence showing that the use of cash bail does not decrease crime, and in fact, it risks increasing future criminal activity. So why is SB 63, which failed last session, in the news again? Under the guise of justice and safety, judges, district attorney offices, and dishonest politicians use this tough on crime posturing to win political points with a misinformed public. Ignoring robust evidence is troublesome as it leads to poor policy and exacerbates the ongoing human rights crises in many Georgia jails while wasting significant financial resources.
There are many alternative policies that would enhance health and safety for Georgians. An available policy we suggest in lieu of SB 63 is immediate Medicaid expansion. Studies show that Medicaid expansion is remarkably effective at lowering crime rates while also enhancing health outcomes. We call for the end of wealth-based detention in Georgia.
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