Cash Bail: ‘Devastating’ for Women and Families

One in four women behind bars has not yet been convicted of a crime or even started their trial. Instead, they are being held in pretrial detention because they can’t afford their bail, with long-term negative consequences to themselves as well as their families.

“The United States has a two-tiered system of justice: one where you can buy your freedom and another one for people with low incomes who end up languishing in jail because they lack the financial resources to buy their way out of jail,” said Micah West, senior staff attorney with the Economic Justice Litigation Team at the Southern Poverty Law Center. While the average yearly income of a woman who can’t afford bail is $11,000, the average bail is $10,000. “For women with low incomes — the majority who are in custody — that might as well be $1 million. Cash bail is one of the biggest drivers of mass incarceration.”

Nationwide, women’s state prison populations grew by 834% from 1978 to 2018. This is at twice the pace of men, according to the Prison Policy Initiative, a research and advocacy organization focused on mass incarceration. There are 51,000 women in jail on any given day, “but this is just a snapshot,” said Mike Wessler, communications director at the Prison Policy Initiative. “Two million women go in and out of jail per year. This goes to show that the 51,000 number barely scratches the surface in terms of the number of lives upended and the devastation that it causes.”

For years, advocates have criticized cash bail for the myriad ways it harms women, communities of color, and people with the fewest resources, pushing for reforms, including abolishing it altogether. Last September, Illinois became the first state to eliminate cash bail, with the Pretrial Fairness Act. “Illinois could be a good model” for other cities and states, said Allie Preston, a senior policy analyst in criminal justice reform at the Center for American Progress and author of their May report, The Pretrial Fairness Act: Why It Is Needed and How It Will Improve Pretrial Safety and Justice in Illinois. “There was a wide array of stakeholders in the room working on [the law], including survivors of domestic violence so provisions to ensure their safety were included.” Judges now will assess safety concerns in each case, and “people who pose a threat to their community will not be able to purchase their release,” Preston explained in the report.

Although cash bail is often cited as a necessity for public safety, there is no link between bail reform and an increase in crime. Advocates instead point to the harms that pretrial detention causes. Keeping women behind bars because they can’t afford to post bail creates a harmful ripple effect that extends well beyond just the individual person. Eighty percent of women in jail — where people are held in pretrial detention — are mothers. “When a woman is held in pretrial detention, the whole family is injured and the damage can be permanent,” said Jacqueline Azis, staff attorney at the ACLU of Florida.

Women are more likely to be financially responsible for the household, as well as being the child care providers. “Women are often the logistical, emotional, and economic linchpins of family structures, making the impact of their absence incredibly devastating,” said Gina Clayton-Johnson, founder and executive director of the Essie Justice Group, an advocacy organization and a leader of the yearly Black Mama Bailouts in California, a national initiative to post bail for incarcerated Black mothers around Mother’s Day. “Once we bail Black mothers out of jail, frequently their charges are dropped — this is not unusual, making women’s pretrial incarceration even more concerning.”

Any financial hardships that existed before the arrest are only likely to worsen. For one thing, it’s hard to take time off from a low-paying job, making it more likely women will lose them while in detention, Wessler explained. And “if you’ve been struggling to make your rent before being arrested, you are then more likely to lose your housing.” On top of that, “spending time in jail introduces law enforcement into your children’s lives, making it more likely that you’ll lose custody of them.”

If their pretrial detention is long enough, women may not only lose their children to foster care temporarily, they could lose their parental rights altogether. And if they are pregnant, “they face the possibility of giving birth behind bars,” said West, where they won’t be able to get adequate prenatal care, if they receive any at all. Also, “most jails don’t respect gender identity, and transgender people are at increased risk of violence while in custody as well as not having access to appropriate medical care.”

All of these factors can lead people, especially women supporting a family, to make desperate decisions. “They are under enormous pressure to get released from pretrial detention and therefore may be more likely to plead guilty to something they didn’t do, in order to be able to get out,” said Jerry C. Edwards, staff attorney at the ACLU of Florida.

But pleading guilty to charges in order to be released has lasting repercussions. Women “then have a criminal record, which has collateral consequences in terms of future education opportunities, employment, and housing,” said Preston. Simply being held in pretrial detention can also have negative impacts on the outcome of the trial itself. Not only does it make preparing for trial difficult, but women who have been held are “more likely to be convicted and more likely to have a longer sentence,” said West.

Jails are also especially dangerous places for women. “Being held in jail for a week is harmful to anyone, but women face unique challenges,” said Brandon Buskey, director of the ACLU Criminal Law Reform Project. “Jails often fail to provide adequate health care, and, for women with mental health or substance abuse issues, it can have devastating consequences. Jail is designed to punish, not to provide optimum care pretrial. People often decompensate in jail. Courts shouldn’t just look at the risk of the individual to society when they are setting bail, they also need to look at what risk jail will have on the person and the consequences of being put in a cage for three weeks.”

Women have higher mortality and suicide rates in jails than men because they enter into the criminal justice system with higher rates of mental health and substance abuse issues. “Jails are not equipped to handle detox or mental health issues,” said Wessler. “If you are arrested for a mental health related issue, jail is further destabilizing. And detoxing in jail is dangerous. If you are in a bad situation before your arrest, you are likely to come out worse.”

Women in pretrial detention “face all the dangers and indignities that women who are incarcerated face: sexual assault, lack of access to medical care and medication, and if you are on dialysis or taking medication for a chronic condition at the time of your arrest, you won’t get any of those services in a jail,” said Andrea James, founder and executive director of the National Council for Incarcerated and Formerly Incarcerated Women and Girls, an advocacy organization. “Cash bail is a draconian, barbaric system and I still can’t understand how it’s legal, constitutional. What if instead we didn’t put women in jail? What would that look like?”