How the For-Profit Prison Industry Keeps 460,000 Innocent People in Jail Every Day

By Luke Darby, GQ

24 May 19

Cash bail presents people with two choices: debt or jail.

n 2014, The New Yorker's Jennifer Gonnerman detailed the story of Kalief Browder, a 16-year-old from the Bronx, who was imprisoned in Rikers Island for three years, two of them in solitary confinement, because he couldn't afford his $3,000 bail. His alleged crime: stealing a backpack in 2010. Gonnerman's story helped galvanize public opinion against cash bail, and now New York is close to eliminating it. But it didn't help Browder, who killed himself not long after he was released, traumatized by his time in prison.

Browder's story is an extreme, but the basic elements of it are common. According to the Prison Policy Initiative, less than 25 percent of people held in local jails right now have actually been convicted of a crime. By their reporting, over 460,000 "presumed innocent" people are in jail on any given day. Like so many other aspects of the criminal justice system, cash bail punishes minorities and the poor far more harshly.

In 2015, 18-year-old Allen Bullock smashed a traffic cone into a cop car at a Baltimore protest after Freddie Gray died while in Baltimore police custody. When he turned himself in afterward, a judge set his bail at $500,000, double the amount for some of the officers who were being charged for Gray's death. In San Francisco, Kenneth Humphrey spent a year in jail awaiting trial after his bail was set at $350,000 for allegedly stealing $5 and a bottle of cologne in 2017.

Typically, within 24 hours after arrest, a defendant sees a judge for a bail hearing. While they're awaiting trial, the judge can choose to release or keep them in jail. What's most likely is that the judge will release them on bail, meaning they pay a sum of money set by the judge, they get out of jail, and regardless of the outcome of the trial, they get that money back afterward. But that's only what happens if they can afford bail outright. If they can't get the money together, they can get a bail bond, where a private company charges them a fee in exchange for guaranteeing the payment. Not only do they not get that money back, if the fee is too high for them to pay all at once, bond companies offer monthly installment plans that charge interest.

The anti-cash bail movement is gaining steam. In New York, congresswoman Alexandria Ocasio-Cortez just endorsed Queens District Attorney candidate Tiffany Cabán who made ending cash bail a priority. Last year, California banned cash bail altogether. Since then, several other states have reformed their bail systems, including New Jersey, Colorado, and New Mexico. Still, the U.S. is one of only two countries in the world that allows a for-profit bail bond industry to exist. The other is the the Philippines. Just last month, the American Civil Liberties Union called explicitly for a total end to for-profit bail, and there's a host of other human rights groups who also oppose it.

A Human Rights Watch study in 2010 examined thousands of cases in New York where bail was set at $1,000 or below, and in 87 percent of those cases, people couldn't afford even that relatively low amount. On average, the people in the report were held for a little over two weeks while awaiting trial. A lot can happen in that time spent waiting. You're likely to lose your job, since no employer is obligated to cover for you or hold your position until you're, maybe, found innocent. In a separate study, the Pretrial Justice Institute found that 30 percent of people they surveyed had lost their job while they were waiting for trial, even if they were only held for one to three days. There's also evidence that pretrial detention is more likely to lead to convictions, since people take plea deals even if they're not guilty, and recidivism (the likelihood of committing more crimes). And, obviously, while you're being held in jail, you can't vote. In essence, the cash-bail industry strips low-income defendants of their civil rights, ability to earn a living, and fair treatment under the law.

Bail-bond companies typically look like mom-and-pop operations, but the majority of them are owned by one of nine insurance companies, and the industry as a whole rakes in between $1.4 and $2.4 billion a year. According to the ACLU, it's hard to get an exact estimate on that figure because state record-keeping is inconsistent and corporate finance reporting is opaque. And unsurprisingly, the bail bond industry has well-moneyed lobbyists to fight the reforms that activists are pushing for. Just last month, Louisiana advanced a bill that would absolve bond companies of repaying 50,000 New Orleans families despite collectively overcharging them more than $6 million.

Even the recent reforms aren't going far enough. Just before California's bail reform passed, groups like the ACLU and the Essie Justice Group pulled their support. The new system divides offenses into set risk tiers, and activists believe it will actually cause more people to be held for pretrial detention. On top of that, they're concerned that it gives judges too much power to drop burdensome release requirements on people who, again, haven't been convicted of a crime.

The progress that is happening is happening slowly. Meanwhile, every year, hundreds of thousands of people who haven't been convicted of anything are stuck in this cycle—losing their homes and jobs, straining their families' resources. Some organizations are trying to lessen the burden while the law catches up. But as long as cash bail represents a billion-dollar industry, the executives profiting off of the vulnerable will pour money into the fight to keep it alive—the human suffering is just the cost of doing business to them.