Unequal Justice: bail and modern-day debtors' prisons in Nebraska
Over 30 years ago in Bearden v. Georgia, the United States Supreme Court issued a seminal ruling that to imprison someone because of their poverty and inability to pay a fine or restitution would be fundamentally unfair and violate the Equal Protection Clause of the Fourteenth Amendment. Yet today, courts across the United States and Nebraska routinely imprison people because of their inability to pay. This practice has been termed a “modern-day debtors’ prison.” This practice happens at various points in the criminal justice system. First, it can happen to people who are awaiting trial. Individuals are forced to sit in jail while their case proceeds because a bail amount has been set beyond their ability to pay while those with financial resources regain their freedom to go to work, school and be with their families while awaiting trial. Second, some people who have been adjudicated and found guilty end up in jail even though they were not sentenced to jail time because they are unable to pay a fine and are imprisoned instead to “sit it out.”
The end result of these systems: a maze with dead-ends at every turn for low-income people.
Being held in jail comes with devastating human costs for low-income Nebraskans. Being held in jail while awaiting trial means one is more likely to be found guilty and more likely to receive a stiffer sentence. People who are in jail—whether pretrial or whether sitting out a fine—face significant disruption to their lives. Before they even get to trial, Nebraska defendants charged with nonviolent offenses spend an average of 48 days behind bars. Being imprisoned has a destabilizing impact on their jobs, their children, and their wellbeing. These burdens fall on people who were already struggling and at risk. It is well documented that racial disparities exist at every stage of our criminal justice system. This research shows a clear and disturbing overrepresentation of people of color behind bars in Nebraska as well.
Wasting Tax Payer Money
Incarcerating low-income people prior to trial or requiring an indigent defendant to sit out a fine costs much more than counties actually recoup. Our study revealed that over half of the county jail populations were pretrial people—Nebraskans presumed innocent but unable to afford bail to go home. At the same time, several counties are facing overcrowded jails and are burdened by paying other counties to take their inmates. Indigent defendants sitting out a fine are doing so at taxpayer expense—it costs between $80-90 per day per inmate, depending on the county involved. The annual costs to run the jails in our four largest counties will reach over $73 million in 2017. Both practices strain county budgets and burden taxpayers unnecessarily.
Findings on Bail
To construct a snapshot of the pretrial jail population in Nebraska, on four random days in the summer of 2016 we acquired the jail lists of the four most populous counties: Douglas, Lancaster, Hall, and Sarpy. As more fully described in the Appendix, this meant we were able to capture individual inmates’ criminal charge, race, amount of time in jail, and bond amount.
When an inmate had more than one charge, we recorded and categorized that inmate by the most serious charge for which they were awaiting trial. If defendants were being held pretrial for more than one charge, we calculated the total amount of money they would need to post to be released that day.
When categorizing the severity of the charges, we divided crimes into the nine categories in the Appendix. See the Appendix for a full explanation of methodology.
Through court observations, and reviewing bail schedules and jail lists, we discovered many current practices in Nebraska do no comply with the law.
Many defendants are incarcerated for nonviolent crimes. An average of 17.5% of the pretrial defendants in the surveyed counties were in jail for nonviolent drug offenses. 11.4% were theft and shoplifting charges, and 7.3% were traffic related charges. In total, over half of the pretrial population were accused of nonviolent offenses. Notably, Hall County’s nonviolent pretrial population was the largest at 66.7%.
We found that all pretrial defendants spend an average of fifty-five days in jail before their trial or the acceptance of a plea deal. The waiting period is shockingly long even for nonviolent offenders, who spend an average of forty-eight days in jail. The amount spent to house each inmate varies by county. In Douglas County, it is estimated to cost $83.40 per day per inmate and Corrections is 19% of their 2017 budget. Hall County taxpayers pay approximately $88.00 per detainee per day and Corrections is 25% of their 2017 budget. The extent to which our county jails are overcrowded with low-level arrestees—who are presumed innocent—is demonstrated by the fact that both Sarpy and Douglas Counties are paying other counties to house their overflow inmates.
"First and foremost, we must ensure that we are in compliance with federal law when it comes to imposing fines and court costs on defendants. We should not be infringing upon people’s civil rights and incarcerating nonviolent offenders simply because they are poor and cannot afford to pay. We are in support of the ACLU’s efforts of reform."
Mary Ann Borgeson, Chair of the Douglas County Board of Commissioners
We also reviewed bail schedules, which are generally used for the initial period following an arrest; a defendant picked up after hours, on a weekend or on a holiday can still be released without seeing a judge if she has the cash listed on the bail schedule for her crime. These schedules are set by each of the 12 judicial districts, and the bail amounts vary widely based on geographic location. See the Appendix for bail schedules from each judicial district.
Examples of discrepancies from county to county include:
- DUI in the First Judicial District (Gage, Saline, Nemaha counties) will bail out at $3,500, while a DUI in the Third Judicial District (Lancaster County) needs only $2,500.
- Class I misdemeanors have bail at $10,000 in the Fifth Judicial District (Saunders, Seward, Platte, Hamilton counties) in comparison to $5,000 in the Fourth Judicial District (Douglas County).
- Driving on a suspended license requires $2,500 in the Third Judicial District (Lancaster County) but no bail need be posted in the Fifth Judicial District (Saunders, Seward, Platte, Hamilton counties) for the same charge.
- Domestic violence charges—even misdemeanors—automatically jump to $50,000 in the Second Judicial District (Douglas County) while other counties track the seriousness of the charge.
- Bail amounts automatically increase for non-residents in the First Judicial District (Gage, Saline, Nemaha counties) and Tenth Judicial District (Kearney, Adams counties).
- Officers have the discretion to release anyone without bail in the Second Judicial District (Sarpy County) except in cases of domestic violence and violations of protection orders. Residents may be released without bail in all cases if the arresting officer feels it is not necessary in the Tenth Judicial District (Kearney and Adams counties) and the Eleventh District (Dawson, Lincoln, Red Willow counties).
- Only a few bail schedules emphasize the expectation that requiring a bail is limited to circumstances involving public safety or flight risk: Seventh Judicial District (Madison County), Eighth Judicial District (Howard and Brown counties), Twelfth Judicial District (Scotts Bluff, Box Butte, Cheyenne counties).
In addition, we found that people of color were disproportionately represented in the pretrial populations in comparison to the demographics of the county in which they were incarcerated.
In Lancaster County, whites compose 87% of the population, Blacks compose 4% and Hispanics compose 6%. In the Lancaster pretrial jail population, 59.1% are whites, 21.8% are Blacks and 8.2% are Hispanics.
In Hall County, the population is made up of 92% whites, 2% Blacks and 26% Hispanics. In the Hall pretrial jail population, 47.6% are whites, 20.6% are Blacks, and 25.4% are Hispanics.
In Douglas County, whites compose 81.1% of the population, 11.5% Blacks and 12.2% Hispanics. In the Douglas pretrial jail population, 39% are whites, 47% are Blacks and 10.7% are Hispanics.
In Sarpy County, the population is composed of 89% whites, 4% Black and 8% Hispanic. In the Sarpy pretrial jail population, 67.4% are whites, 16.3% are Blacks and 12.8% are Hispanics.
The racial disparities we discovered extend to the amount of bail as well. The average bond for a nonviolent offense was $40,251 on the days we studied and $73,772 for a violent offense. If you are Black, Hispanic or Native American, you can expect your bond to be $14,572 more than the average bond for a nonviolent offense and $13,109 more for a violent offense. This disproportionate treatment of people of color in the pretrial context shows how the court system systematically disadvantages people of color. Nebraska’s racial disparities are not an anomaly; studies across the U.S. have demonstrated that money bail specifically has a disproportionate impact on communities of color.
Interviews with criminal defense attorneys across the state suggest that the findings from the four surveyed counties are likely a fair representation of Nebraska’s pretrial system as a whole. Attorneys identified the final essential problem of high bail amounts: they can result in defendants pleading guilty simply to go home. “My clients regularly do the cost-benefit analysis,” reported one public defender. “They can’t post bail, and the trial date is a month away. The defendant knows if they plead guilty today to a misdemeanor, it’s ‘just’ a little charge on their record and they can go home. What they don’t factor in is what happens on the next charge they might have. The next judge sees this person has a criminal record and accordingly decides to nudge the bail amount up a little more, creating a vicious cycle. I’ve had clients with a viable defense who just threw in the towel so they could get back to their job, their children, and their lives.”
We were also struck in our court observations by how unrepresented defendants are treated while appearing before the judge and prosecutor. Without an attorney to advance arguments for a low bail, these defendants frequently did not even know how to articulate the request for release on their own recognizance or on a reasonable bail amount.
Increased incarceration leads to an increase in spending taxpayer dollars on people who are presumed innocent in the eyes of the state, many of whom are not a risk to society but are too poor to post bail. Our current bail practices hurt Nebraskans who are presumed innocent, have devastating impacts on their families, and are fiscally burdensome for counties. This is why the ACLU, along with professional associations and county officials around the country, are calling for immediate reform.
Read the full report from the ACLU of Nebraska at: https://www.aclunebraska.org/en/publications/unequal-justice