How you can get stuck in jail without being guilty

Unable to pay a $3,000 bail after an arrest for allegedly stealing a backpack, Kalief Browder spent three years in jail at New York's Rikers Island awaiting trial. Arrested at 16, Browder suffered abuse allegedly from guards and inmates and committed suicide in June.

New York City's new laws allowing some leniency in the bail system are a much-needed step in the right direction, Browder's lawyer told CNBC. The program, announced July 8 by Mayor Bill de Blasio, allows for low-risk defendants who cannot pay their bail to be supervised in the community instead of waiting in jail until their court dates.

Ann Hermes | The Christian Science Monitor | Getty Images

Bail bonds services are crowded around the streets near the Orleans Parish Criminal District Courthouse on October 26, 2012 in New Orleans, Louisiana.

"Prior to this reform [bail] was certainly more flawed than good," said Paul Prestia, the attorney who handled Browder's case. "The bail system serves a purpose, but it's skewed. Families who are disadvantaged are going to have a much more difficult time obtaining bail."

When asked if they would be able to afford a hypothetical emergency expense costing $400, such as bail money for a family member, only 47 percent of Americans said that they would be able to pay without selling something or borrowing money, according to the Federal Reserve's most recent data.

"If the family doesn't have the bail amount handy at the arraignment, within minutes the defendant could be on a bus to Rikers," Prestia said. "Then the process to take them home [after posting bail] could take days."

Cash bail amounts, intended to be insurance that someone arrested for a crime will show up for their court date, can become a problem when defendants who are unable to pay must wait in jail for their court date, often resulting in job loss and financial strain.

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The almost $18 million supervised release program in New York City will be an expansion of pilot projects in the boroughs of Queens and Manhattan, and will let 3,000 eligible defendants remain at home with their families and continue working while waiting for trial, the mayor's office said. In the Queens pilot, 87 percent of the people being supervised in the project returned to court without using cash bail.

At Rikers Island, 40 percent of detainees are there because they can't afford to make bail, according to the New York Civil Liberties Union, which testified before the New York City Council to advocate abolishing cash bail.

The average cost of keeping someone in jail while they wait for trial is approximately $19,000 per defendant, compared with averages ranging from $3,100 to $4,600 for alternatives like community supervision, depending on the person's risk level, according to research sponsored by the Department of Justice.

In addition to housing costs to taxpayers, waiting in jail can be costly for defendants.

Spending sometimes months in jail before their court dates, defendants can lose their jobs from missing work, said Nancy Fishman, project director at the Vera Institute of Justice, causing a spiral effect for families as missed payments for things like mortgages, cars and child support begin to add up.

"We're talking about people who don't have jobs where they can just say 'Hey I'm not going to be in for a few weeks, can I still have my job when I get back?'" said Fishman.

Aside from financial effects, being held in jail—even for a short time—has effects on future behaviors, according to the Vera institute's report Incarceration's Front Door: The Misuse of Jails in America. Compared to defendants who were held for no more than 24 hours, those held for eight to 14 days were 51 percent more likely to go back to jail for another crime after sentence completion.

Jails are a gateway into the criminal justice system, Fishman said.

"When you look at the large scale trend of mass incarceration and its tremendous impact on low-income communities and communities of color, we know that starts with jail stays," Fishman said.

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The use of money as a way to decide who waits in jail and who goes free has steadily increased, according to the Bureau of Justice Statistics, with the percentage of pretrial releases involving financial conditions rising from 37 percent to 61 percent from 1990 to 2009.

Defendants do have another option though: They can take out a bail bond with a private bondsman, who will charge a percentage of the bail after the defendant shows up for court. If the defendant doesn't show up, they must pay back the full amount of the loan.

The corporate bail bonds industry serves a purpose without costing tax payers, said Melanie Ledgerwood, association manager at Professional Bail Agents of the United States. Since bail bondsmen have a vested interest in getting their payment from defendants, they are motivated to keep up with that person.

"You're taking a private industry that is financially responsible for defendants and putting that burden on the taxpayers," she said. "When someone is released on taxpayer funds and they're going to be supervised, we question what happens when that person fails to appear to court."

Law enforcement agents would then have the burden of finding the defendants, Ledgerwood said, increasing costs, as opposed to bail bondsmen who instead employ bounty hunters to do the job.

If states continue to increase programs that release and supervise defendants the bail bonds industry will see declines, she said.

The problem with private bail bonds though, is that low-income people who can't afford bail, can't afford to pay the interest to the bail bondsmen either, adding additional pressure to their situation, said Fishman.

"You have low-income people owing money, the consequences could pull them further and further into the justice system," Fishman said. "The reality is that your ability to pay is not a good proxy for your likelihood to show up to court. What you really want to know is if this person is going to be accountable to the court system."