On any given day in North Dakota, far too many people are locked up in local jails. The majority of them not being convicted of a crime.
After an arrest — wrongful or not — a person’s ability to leave jail and return home to fight the charges depends on money. That's because people are typically required to pay cash bail. Originally, bail was supposed to make sure people return to court to face charges against them. But instead, the money bail system has morphed into widespread wealth-based incarceration.
Poorer North Dakotans and people of color often can't afford to come up with money for bail, leaving them stuck in jail awaiting trial, sometimes for months or years. Meanwhile, wealthy North Dakotans, often accused of the same crime, are able to buy their freedom and return home.
Across the country, money bail is set at levels far too high for people or their families to pay. Defendants face an impossible choice: sit in jail as the case moves through the system; pay a nonrefundable fee to a for-profit bail bonds company; or plead guilty and give up the right to defend themselves at trial. For poorer families, paying this fee can be a significant hardship. They won’t ever get the money back regardless of the outcome of the case – even if the arrest was a case of mistaken identity and no charges were ever filed.
This bail system has increased the jail population and made America's incarceration problem worse. According to a report by the Vera Institute for Justice, the number of annual jail admissions doubled in the past three decades to 12 million, and the average length of stay increased from 14 to 23 days.
The ACLU of North Dakota’s Campaign for Smart Justice is fighting in communities across the state to end the unjust bail system, which often profits private bail insurance companies. Current bail practices are unconstitutional in violating due process rights and equal protection under the Fourteenth Amendment, the prohibition against excessive bail in the Eighth Amendment, and the right to a speedy trial guaranteed by the Sixth Amendment.
For-profit bail bond companies and the insurance companies who back them don't want to see changes to a system that generates revenue for them, but some states are starting to look at a smarter path forward. In New Jersey, for instance, lawmakers have imposed bail reforms that consider the individual in deciding whether someone can return home, not just how much money that person has. This approach makes the system more equitable and effective.