The reason Sandra Bland was still in jail three days after being arrested was that she hadn’t posted the $5,000 bond that had been set for her by a Waller County, Texas judge. Posting that bond would have required Bland to come up with $500—10 percent of the full sum—in exchange for her freedom. According to a lawyer for the Bland family, they were working on securing the necessary funds when Bland was found dead in her cell on the morning of July 13.
If Bland had been able to pay her bail on the spot, she would have been released immediately following her arraignment, which took place on Saturday, July 11, the day after she was pulled over on a traffic violation and detained for allegedly assaulting a police officer. A representative for the Waller County Sheriff’s Office told me they could have processed Bland’s bail at any time Saturday or Sunday.
The point of bail is to make sure that someone who has been accused of a crime appears in court when the time comes for a judge to hear her case. The money acts as an insurance policy for the judicial system: If you show up for your court date, the money is returned to you. If you don’t appear, you have to pay the court the full amount of your bond. How much you’re required to pay in bail up front is supposed to be based on whether a judge or a magistrate considers a defendant a flight risk, and whether he believes the defendant to be dangerous.
In practice, the bail system is particularly hard on poor people, who frequently get stuck behind bars because they can’t afford to post bond, while those with greater means pay their bail and go home. According to one study, five out of six people in jail are there because they could not afford to pay their bail.
A movement to change the bail system in the U.S. has been gaining momentum recently. During the past year, a civil rights organization called Equal Justice Under Law has been successfully pressuring small cities around the country to cease using cash bail, on the grounds that it is a violation of the 14th Amendment. If the bail system is harder on poor defendants than the well-to-do, the argument goes, then it is a violation of the Equal Protection Clause. To date, the two lawyers who started the organization, Alec Karakatsanis and Phil Telfeyan, have mounted cases against five cities in three states. Two of those cases—against Dothan, Alabama and Velda City, Missouri—have resulted in settlements that required the cities to stop charging people money for their freedom. The other three cities, according to Karakatsanis, have also agreed to stop using cash bail in response to being sued, and settlement negotiations are underway.
In one of the cases Equal Justice Under Law has pursued, against Clanton, Alabama, the Department of Justice took the rare step of filing a statement of support that called the bail system in that city unconstitutional because it “fixes bond amounts based solely on the arrest charge, and does not take individual circumstances into account.”
This is called a “fixed bail” system: one in which judges set bail based on prewritten guidelines that put specific price tags on certain kinds of crimes. While fixed bail systems are common throughout the United States, they are not universal. Waller County uses such a system, but only as of about six weeks ago, according to Chief Deputy of Patrol Craig Davis. Davis told me that the four justices of the peace who set bail amounts in Waller County had recently moved to a fixed system—also known as a “bond schedule”—on the recommendation of the Waller County district attorney’s office. (Calls to the Waller County DA’s office were not returned on Thursday.)
Under the new system, Davis said, “when anyone comes into the Waller County jail, there’s a suggested bond setting for their particular offense, whether it’s a misdemeanor all the way up to first degree felonies.”
Tim Schnacke, the executive director of a research center focused on bail policy, told me in an email that bail schedules were originally conceived as a way to help defendants, by making the process of setting monetary bail quicker, simpler, and more consistent. “Over time, however, these schedules almost always become longer, and included higher and higher amounts, leading to them actually hindering release more times than not,” Schnacke wrote. “I’ve seen amounts in the hundreds of dollars and the hundreds of thousands of dollars. I saw one the other day that had a nifty line about adjusting it for inflation.”
The problem with fixed bail schedules, Schnacke added, is that they “keep low- and medium-risk people in jail who don’t have money,” while keeping high-risk people with money out of jail. Someone with money in the bank can walk free, even if their record indicates that they’re a high flight risk, while an indigent defendant has to stay locked up no matter what.
So far, all the cities that Karakatsanis and Telfeyan have sued have used that kind of system, though they argue that the constitutional challenge they’ve been making applies to any bail scheme that treats defendants with means differently from defendants without means. The Department of Justice would seem to agree, and in their statement of interest regarding the Clanton case, they explicitly said that “indigency cannot be a barrier to freedom.”
“What made [Bland’s case] illegal was that they arrested this woman and kept her in a jail cell, and there was never a finding that she was a danger to the community, there was no adversarial hearing with a lawyer where that question was asked, let alone answered, and there was no finding that she was a risk of flight,” Karakatsanis told me. “They put this amount of money on her head, and basically said, ‘You will be kept in this cage unless and until you pay this arbitrarily set amount of money,’ without any inquiry into her ability to pay it.”
In practice, Karakatsanis said, that’s pretty much how cash bail works everywhere, including in those jurisdictions where judges aren’t bound by a fee schedule.
Washington D.C. is the rare jurisdiction (outside the federal courts) that has effectively abolished cash bail during the 1990s. In that city, roughly 15 percent of defendants are held on “preventive detention” because releasing them is considered too risky, but the remaining 85 percent are allowed to walk without paying anything, and the vast majority of defendants end up appearing in court like they’re supposed to. If Sandra Bland had been arrested in Washington, Karakatsanis said, it’s almost certain that she would have been released within hours.
Cherise Burdeen, the executive director of the Pretrial Justice Institute, which advocates for reform related to pretrial detention, put it this way in an email: “Cash bail does work for one thing and one thing only—it detains people usually poor and of color who could be safely released pending trial. That unnecessary pretrial detention [can make] people worse after just three days, and in this case, you see the most tragic of outcomes: death.”