Issues / Addressing the Poverty Penalty and Bail Reform

Common sense dictates that people should not be held in jail or penalized simply because they cannot afford a monetary payment. But, unfortunately, in a myriad of ways, we have a two-tiered system of justice that imposes a “poverty penalty” on individuals who are financially strapped.

The money bail system is intended to ensure that defendants come to court, yet it often means that wealthier defendants get released while poor defendants have to stay in jail. Similarly, fines and fees intended to discourage wrongdoing can push low-income people into debt and, sometimes, imprisonment. These penalties and practices disrupt employment, family relationships and lives, thereby contributing to cycles of recidivism and reducing public safety long-term. The choices that prosecutors make in charging decisions, bail recommendations, and plea bargaining can directly influence these wealth-based inequities.

Information and Resources

FJP Brief on Fines, Fees and the Poverty Penalty

Fines and fees can impose immense burdens on justice-involved individuals, their families, and the governments tasked with collecting them. Instead of advancing public safety and increasing revenue, these charges can increase the likelihood of re-arrest and cost jurisdictions far more than the revenue they bring in. This FJP “Issues at a Glance” brief discusses how fines and fees — and other assessments that disparately impact those in low-income brackets — can harm individuals and their communities and provides concrete recommendations and strategies for prosecutors to address this “poverty penalty” through new policies and practices and legal reform.

FJP Bail Reform Brief

Local prosecutors can help make communities safer and the justice system fairer by supporting the elimination of a money bail system, which penalizes defendants who cannot afford to post bond. Prosecutors should, instead, support a presumption of release where individuals present no risk of flight or danger to the community. This FJP “Issues at a Glance” brief discusses the prosecutor’s role in reforming the money bail system to reduce pretrial incarceration and its potentially counterproductive effect on public safety and recidivism.

Amicus Brief on the Need for Bail Reform

Nearly 70 current and former elected prosecutors — including 16 current elected DAs and AGs and officials from over 30 states — filed a brief supporting litigation challenging cash bail practices in Harris County, Texas. The brief argues that detaining poor misdemeanor defendants pending trial, solely due to an inability to post bail, erodes community trust and does not further public safety. Read the press release here and the brief here.

Speaking Out

“California killed cash bail. Now it’s up to judges to determine a fair replacement.”

In a Sacramento Bee op-ed about California’s recent elimination of cash bail, FJP Executive Director Miriam Krinsky and retired Santa Clara County Superior Court Judge LaDoris H. Cordell discuss uncertainties in the law and urge judicial leaders charged with implementation to develop safeguards that will guard against replicating the harms of cash bail.

“To avoid replacing one unjust [bail] system with another, the California judiciary must dedicate itself to presiding over a system that is fair and equal, and that dramatically reduces the population in county jails.”

– Former Santa Clara County Superior Court Judge LaDoris H. Cordell and FJP Executive Director Miriam Krinsky

“Jailed for Being Too Poor”

From limiting diversion fees to offering meaningful alternatives to counterproductive fines, prosecutors can play an important role in ensuring the criminal justice system promotes public safety and accountability — and doesn’t criminalize poverty or punish the poor — writes FJP Executive Director Miriam Krinsky in a Huffington Post Op-Ed.

“Prosecutors hold immense authority as justice system leaders. They should use their positions to bring together legislators, law enforcement officials, judges and defense counsel, among others, to work to ensure the justice system advances justice, not cycles of poverty.”

— Fair and Just Prosecution Executive Director Miriam Krinsky

“Bail Reform: Explained”

Read this in-depth analysis from In Justice Today describing the role of bail in the criminal justice system and the ability of prosecutors to reduce reliance on cash bail.

“While judges are the ultimate gatekeepers, prosecutors play an important role in the process and can advocate for bail reform, screen cases early and establish a presumption of recommending release.”

“With Money Bail, System Continues to Criminalize Poverty”

Winnebago County (WI) District Attorney Christian Gossett and FJP Executive Director Miriam Krinsky discuss concerns with the current money bail system and urge prosecutors to “take responsibility for their role in this damaged system and do what they can to ensure the criminal justice system does not perpetuate the modern-day debtors’ prison.” Read more here.

“What money bail can do is cause people to be incarcerated unnecessarily. This can seriously destabilize people’s lives — and in turn, their families and communities — by causing them to lose their jobs, homes or children.”
— Winnebago County (Oshkosh, WI) District Attorney Christian Gossett and FJP Executive Director Miriam Krinsky

“For a Fairer System, Kim Foxx Takes a Political Risk”

Chicago Tribune editorial on Cook County (Chicago, IL) State’s Attorney Kim Foxx’s decision to limit the use of money bail. Read it here.

“How The Poor Get Locked Up and the Rich Go Free”

Los Angeles Times Editorial Board discusses the problems with cash bail and the efforts in Harris County, Texas and California to move away from cash bail and toward risk-based assessments.