Pay the Bondsman or Risk Death: How COVID-19 Highlights Need for Bail Reform

By: Audrey Blakley

More than half a million people sat in U.S. jails mid-2020. [1] Shockingly, this figure has actually decreased from years prior. [2] While the COVID-19 pandemic contributed to this unusual drop, the pandemic also exposed this population to risk of infection and death. [3]

It is important to note that most people held in jails are awaiting trial, and therefore, have not been convicted of a crime. [4] Although defendants often have the opportunity to post bond in exchange for pretrial release, many cannot afford it. [5] Not only do cash bonds prove unattainable for low-income families, but property bonds also put them at a disadvantage—as low-income households are less likely to own their home. [6] With these two options off the table, many defendants utilize “bail bonds.”

The bail bond process typically involves a family member contacting a “bondsman,” who pledges to pay the full bond amount if the accused fails to appear in court, and the family member will then pay a non-refundable fee in exchange for these services. [7] For defendants who cannot afford bond on their own, this creates a difficult choice: stay in jail or burden your low-income family with a hefty, non-refundable fee. Adding COVID-19 to the mix only complicates things further, as defendants with certain medical conditions may feel greater pressure to leave custody in order to limit risk of illness or death. [8]

Prior to the pandemic, low-income individuals in pretrial custody still faced immense pressures. For instance, if paying a bail bondsman was not feasible, some defendants would accept plea deals—even if they were actually innocent—rather than prolong their time in miserable jail conditions. [9] Now with the additional risk of contracting COVID-19, it is possible that even more defendants will see a guilty plea as their only option, regardless of actual guilt.

Because poor families are disproportionately impacted by bail policies, some groups have proposed abolishing cash bail. [10] Further, many criminal justice reform advocates refer to cash bail as a “poor people’s tax” and point out that it disproportionately affects people of color. [11] On the other hand, supporters of cash bail argue that eliminating cash bail puts law enforcement and the general public at risk. [12] While this is a valid concern, initial studies in New Jersey and Washington, D.C. (where cash bail has been nearly eliminated) report “little-to-no increase in crime.” [13] At the same time, while the Constitution protects against “excessive bail,” there is no absolute right to bail itself. [14]

Though it remains controversial, the movement against cash bail is slowly gaining traction. For example, just last month, Illinois became the first state to eliminate cash bail payments for pretrial release. [15] The “Illinois Pre-Trial Fairness Act” constitutes just one part of a larger bill, House Bill 3653, which also seeks to correct problems in policing. [16] Similar efforts to end cash bail have been launched in New York, Alaska, and California but have so far proven unsuccessful. [17] However, once Illinois officially implements its no cash bail policy in 2023, other states may be swayed—by its ultimate success or failure.

[1] https://www.vera.org/downloads/publications/people-in-jail-and-prison-in-2020-fact-sheet.pdf

[2] Id.

[3] https://time.com/5924211/coronavirus-outbreaks-prisons-jails-vaccines/

[4] https://www.aclu.org/issues/smart-justice/bail-reform

[5] Id.

[6] https://www.census.gov/prod/1/statbrief/sb94_18.pdf

[7] https://legalaidnyc.org/get-help/bail-incarceration/what-are-the-different-types-of-bail/

[8] https://time.com/5924211/coronavirus-outbreaks-prisons-jails-vaccines/

[9] https://www.npr.org/2021/02/22/970378490/illinois-becomes-first-state-to-eliminate-cash-bail

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] https://www.law.cornell.edu/wex/excessive_bail

[15] https://www.npr.org/2021/02/22/970378490/illinois-becomes-first-state-to-eliminate-cash-bail

[16] Id.

[17] Id.

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