Bond and Bail: Immigration Reformers Could Learn From Criminal Justice System Reforms

As the plight of asylum-seeking mothers and children languishing in U.S. immigration detention comes to light, advocates and government officials are taking a closer look at the use of bond—a payment intended to secure an individual’s compliance with immigration court hearings.

Many women and children remained locked up for months despite their eligibility for release simply because they could not afford to pay the high bond amounts set by immigration authorities. The Department of Homeland Security recognized this in its June 24th statement, saying that immigration officials would try to set bond at amounts that mothers could actually afford. On July 16 at a House Judiciary Committee hearing, Secretary of Homeland Security Jeh Johnson noted that after vising family detention facilities, he was “struck by the number of people who were there who had a bond set but […] were not able to produce the cash.”

Pretrial detention in the criminal justice system has also come under scrutiny by lawmakers across the political spectrum, raising many of the same issues that fueled bail reform in the 1960s. Citing both the cost on taxpayers and the discriminatory effects on indigent defendants who cannot make bail, bipartisan efforts to reduce pretrial jail populations have been percolating at the local and federal levels.

Right on Crime, a project of the Texas Public Policy Foundation, recently applauded a new program in New York City that will allow more defendants accused of low-level crimes to be released under court supervision as they await trial.

The bipartisan Safe, Accountable, Fair, Effective Justice Reinvestment Act of 2015 (SAFE Justice Act), introduced last month by Rep. Jim Sensenbrenner (R-WI) and Rep. Bobby Scott (D-VA), seeks to reduce pretrial detention by taking into account its disproportionate effects on lower-income people and whether it is actually necessary to ensure appearance and maintain public safety.

Many criminal justice experts have said that lowering bail amounts is not enough and that the use of monetary bail should be abolished altogether. In New York City in 2013, 31 percent of non-felony defendants remained locked up because they couldn’t pay $500 or less. In Washington, D.C., which has been cited as a model jurisdiction, monetary bail has been nearly eliminated (and private bail bondmen are illegal). Monetary bail is only used as a last resort and when defendants can actually afford to pay it—only 5 percent of cases. The vast majority, 80 percent, of people charged with an offense are released on nonfinancial options, such as release on recognizance or community supervision.

Kentucky, another model, has increased rates of release without monetary bail while maintaining appearance rates and improving public safety by using validated risk assessment tools and supporting pretrial release advocacy education for public defenders.

As immigration policy makers consider potential reforms or adjustments to the immigration bond system, including as it concerns families seeking asylum, lessons from the criminal justice system should be taken into account. Immigration authorities should seek to:

• Revise and validate Immigration and Customs Enforcement’s risk assessment tool for guiding release decisions, with a presumption in favor of parole or release on recognizance;
• Use monetary bond only as a last resort and when the individual has the means to pay it; and,
• Expand the use of government-funded community-based programs that are proven effective in securing appearance at immigration court hearings, while promoting community integration.