Approximately 219,000 women are currently incarcerated in prisons and jails across the United States. More than 60 percent of these women have not been convicted of a crime. They are detained pending trial, often because they cannot afford to make bail. Women are more likely to be unemployed at the time of arrest than men are and less likely to have someone who can post bail for them. With the average cost of bail hovering around $10,000, even women who are employed at the time of arrest have difficulty posting bail.
The widespread practice of detaining individuals on generic predetermined or “fixed” bail threatens the Sixth Amendment’s guarantee of the right to a fair trial by impeding individuals in their ability to assist in the preparation of their own defense. If someone is in jail pending trial, that person is less able to confer with their attorneys, less able to review documents and evidence, and less able to help locate and contact potential defense witnesses. The longer a person is detained waiting trial, the more likely they are to plead guilty.
For women, who are more likely to be arrested for non-violent crimes and less likely to re-offend than men, the dedicated representation of counsel during pretrial appearances often means the difference between freedom and captivity. Women charged with misdemeanor and non-violent crimes are more likely to be released on their personal recognizance when represented by counsel during their initial appearance than those who are not represented by counsel. Low-risk defendants released pretrial are less likely to be sentenced to jail and more likely to receive shorter sentences than those detained pretrial.
High pretrial detention rates are a major component of mass incarceration, accounting for 99 percent of jail growth over the last 15 years. While African-American men have been the face of mass incarceration in the United States, women constitute the fastest rate of growth among incarcerated populations. Women, just as men held in pretrial detention, often face long separations from their families resulting in such significant collateral consequences as loss of child custody and eviction from their homes.
On Monday, Google and Facebook announced they are banning all ads from bail bond companies because the for-profit bail industry preys on people of color and the poor, trapping them in an endless spiral of debt. The Lawyers’ Committee for Civil Rights Under Law has worked to expose unscrupulous practices by unlicensed bail companies operating in Baltimore and we are now coordinating with public interest organizations in Baltimore City to present regular Bail Bond Clinics and provide free legal services to people who have fallen prey to the commercial bail bond industry. As we do this work, we are ever mindful that women, their unique voices and their unique concerns can no longer remain on the margins of discussions about criminal justice reform. They must become central to the conversation.
This Mothers’ Day across the country, members of the National Bail Out Collective will hold events in support of the second annual Black Mama’s Bail Out campaign, which seeks to bail out mothers and caretakers who would otherwise be forced to spend Mother’s Day locked away from their children and loved ones. Organizations here in Baltimore will participate in this campaign, but the work cannot stop there. Policy makers must undertake a systematic reevaluation of Maryland’s pretrial justice system to ensure no mother is ever again forced to be separated from her family simply because she cannot afford to pay bail.
Myesha Braden is director for the Criminal Justice Project of the Lawyers’ Committee for Civil Rights under Law. Phylicia H. Hill, a former public defender, is an associate counsel in the Economic Justice Project of the Lawyers’ Committee for Civil Rights Under Law. They may be reached at CJInvestigator@lawyerscommtitee.org.