Whether or Not You Stay in Jail Should Not Depend on How Poor You Are

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October 11, 2017
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Jail Fence

This blog was co-authored by Lambda Legal Staff Attorney and Criminal Justice and Police Misconduct Program Strategist Richard Saenz and Lambda Legal Staff Attorney Sasha Buchert.

The criminal justice system should be designed to treat all people equally. Yet that does not happen for the estimated 450,000 people in the United States who remain in pretrial detention because they cannot afford to pay bail.

Money bail systems are ineffective and costly – and not just for people who are in custody. They also impact families, support networks and society as a whole. Any push for criminal justice reform must include bail reform.

Most jurisdictions do not consider a person’s ability to pay bail as part of their bail assessment. And nine out of 10 people are unable to afford bail in order to secure their release. This means that only 10% of people assessed bail are able to afford it at all.

Whether or not you stay in jail should not be determined by whether or not you can afford it.

But new legislation may help.

Today, Representatives Ted W. Lieu (D-CA) and Carlos Curbelo (R-FL) introduced the Pretrial Integrity and Safety Act of 2017 (s. 1593) in the House, joining the bipartisan effort led by Senators Kamala Harris (D-CA) and Rand Paul (R-KY) in the Senate.

This legislation would provide grants to individual states to encourage the replacement of money bail as a condition of pretrial release by providing funds that allow states to replace their money bail systems with individualized, pretrial assessments. The legislation does not require adoption of specific policies, but does outline certain important principles.

Currently, the cost of detaining people who are unable to afford bail is approximately $38 million per day – which adds up to about $14 billion per year. Instead of presuming that someone should remain in detention, the presumption would be to release detainees, unless the judicial officer determines that such release would not result in the appearance of the person at trial or would endanger the safety of others in the community.

This policy would save taxpayers billions of dollars annually that are spent to unnecessarily detain people without the financial means to pay bail.

Queer people must mobilize around this issue.

Why? Because money bail systems, unsurprisingly, disproportionately harm poor people and communities of color, and have a direct impact on LGBTQ communities.  Being detained for a long – or even short – period of time can lead to a loss in employment, housing, child custody and access to health care. Coupled with preexisting systemic disadvantage, an inability to afford bail could be a death sentence.

LGBTQ people are also frequently assessed higher bail because they are viewed as a greater flight risk based on stereotypes that we are not connected to families or communities.  Further, the system fails to account for the support networks and chosen families that our communities create due to family rejection, homophobia and transphobia.

In Lambda Legal’s Protected and Served? Community Survey, we found that LGBTQ people disproportionately interact with the criminal justice system. And a staggering 74% of LGBTQ people surveyed by Black and Pink’s National LGBTQ Prisoner Survey report being held in pretrial detention because they could not afford bail. More than half of those incarcerated pretrail were held for a year or even longer.

LGBTQ people who are unable to pay bail face unique harms when they are held in pretrial detention. For people living with HIV, this can cause interruptions to medical care. Lambda Legal staff members have also heard from transgender people who have been put in facilities that do not account for their safety – placing them at risk of sexual assault or harassment – and who have been denied medical care – including hormone replacement therapy.

We must come together to reform a bail system that is discriminatory, wasteful and fails to keep our communities safe.

For more information on bail reform efforts, visit: