Jailing people because they can not afford to post money bail amounts to wealth-based detention that violates well-established norms of fairness and constitutional principles.
One of the most basic principles underlying our criminal justice system is the presumption of innocence: that one is “innocent until proven guilty.” Keeping people in jail solely because of their poverty before they have been found guilty of any offense flips this fundamental presumption on its head.
Cash bail allows people with financial means to purchase their freedom, while those without cash remain incarcerated. Freedom from incarceration should not depend on one’s wealth.
The United States is one of only two nations in the world that use cash bail; the other is the Philippines. Most other common law countries criminalize the practice of requiring money in exchange for pretrial liberty.1
Nationwide, 62 percent of people held in jail have not been sentenced, the majority of these people, who should be presumed innocent, are held because they cannot pay cash bail.2 The United States has more people - 526,000 - detained pretrial than most countries have in their jails and prisons combined. In the past three decades, both the use of cash bail and the amount of money assigned as bail has risen steeply.3
Nationally, from 1990 to 2009, the the number of people charged with a crime who were assigned cash bail rose from 37 percent to 61 percent and the average bail amount doubled from $25,000 to $55,400.4
Pennsylvania has also seen a steep rise in the number of people incarcerated pre-trial.5
Washington, D.C., New Jersey, New Mexico, Arizona, Alaska, Colorado, Kentucky, and Maryland have moved to eradicate cash bail.
In addition to statewide reform, many counties and cities have also moved away from this practice, including: Atlanta City, Cook County, Illinois, Harris County, Texas, and Jackson, Mississippi.6 The district attorneys in Richmond Virginia, Philadelphia, San Francisco, Brooklyn, Manhattan, and Middlesex Connecticut, have declared their intention to stop requesting monetary bail for certain offenses.
Pretrial detention caused a major disruption for the detained individual and their families.7 Many people held in pretrial detention will lose their job, even if only detained for a relatively short period.8 People held in pretrial detention may also lose their housing.9 A recent survey of women in pretrial detention in Massachusetts found that almost half were at risk of losing their home through non-payment of rent or eviction as a result of their detention.10 Pretrial detention could prevent individuals from paying child support and can threaten custody arrangements.11 There is also evidence that incarceration contributes to food instability for families of incarcerated people.12
Jails are often deadly, especially for people in pretrial detention. Nationwide, three-quarters of jail deaths occur among people in pretrial detention, and more than one-third of deaths occur within seven days of incarceration.13 People in jail who have not been convicted of their current charges have about twice the mortality rate of those who have been convicted and suicide rate among pretrial detainees can be 9 to 14 times higher than in the general population.14, 15 Nationally, 82 percent of all jail suicides occur among people in “unconvicted” status.16
A 2016 report found that in Pennsylvania across all offenses black defendants are more likely to receive a monetary bail decision especially when charged with a weapons offense; 33 percent of white defendants charged with felony weapons offense were assigned cash bail compared with 78 percent of black defendants charged with similar offenses.17
A study of large urban counties across the US, found that judges are more likely to assign unaffordable bail to black defendants than white. Moreover, the odds of being detained pretrial were twice as high for Latinx than whites and 87 percent higher for blacks than whites.18
People of color (especially Black, Latino, and Native American people) are at a higher risk of becoming involved in the justice system, including living under heightened police surveillance and being at higher risk for arrest. This imbalance cannot be accounted for by disparate involvement in illegal activity, and it grows at each stage in the justice system, beginning with initial law enforcement contact and increasing at subsequent stages such as pretrial detention.
The Risk Assessment Instruments used in determining whether an individual should be detained pretrial or given bail is steeped in racially biased data that too often conflates character with risk, while failing to deliver meaningful pretrial recommendations. In fact, a University of Pittsburgh Institute of Politics study found that, in Allegheny County, judges only use the recommendations from the Risk Assessment Instruments about 60% of the time.19
As with sentencing, Risk Assessment algorithms cannot replace the individual decisions that a judge makes per case.
Assigning cash bail makes our communities more dangerous. Multiple studies have documented the way in which cash bail and pretrial detention undermine public safety.
A large study of cash bail in Philadelphia and Pittsburgh found that assigning cash bail to a defendant increases the likelihood of recidivism by 6-9%.20
A 2016 study of people charged with misdemeanors in Harris County, Texas (Houston), found that pretrial detention was associated with a 30 percent increase in felonies and 20 percent increase in misdemeanors within 18 months of the initial bail hearing.21
Another study found that when low-risk defendants were held for 8-14 days, they were 51% more likely to commit another crime than equivalent defendants held less than 24 hours. When detained for even 2-3 days on bail, low risk defendants were 40% more likely to commit new crimes than equivalent defendants held no more than 24 hours.22
These studies demonstrate the profound destabilizing impact of incarceration on individuals.
In addition to increasing recidivism, cash bail may not actually be that effective at getting people to come to court, the main purpose for its existence. One study that examined bail and court appearance rates in Pittsburgh and Philadelphia found no evidence that money bail increased the probability of appearance.23 Another study demonstrated that release on unsecured bonds, (bonds that allow for defendant’s immediate release and threaten monetary bail only if the defendant fails to appear at a future court date) was slightly more effective in getting people to appear in court than assigning money bail.24
Pretrial detention increases the likelihood of conviction and the length of sentences.25 Cash bail that results in pretrial detention poses a particular threat to innocent people because it induces them to plead guilty in exchange for their liberty.26 Pretrial detention is directly correlated to an increase in guilty pleas, as those who are detained pretrial are far more likely to accept guilty pleas than those who who have their liberty.27
In an analysis of data from 1990 to 2004 from the 75 largest counties in the nation, the Bureau of Justice Statistics found that 60 percent of released defendants were eventually convicted compared to 78 percent of detained defendants.28 In Brooklyn in 2013, 62 percent of defendants charged with a misdemeanor who remained in jail were convicted, compared to only 12 percent who made bail.29 Another study that looked at Pittsburgh and Philadelphia estimated that the assignment of cash bail caused a 12 percent rise in the likelihood of conviction.30
A 2012 study that looked at 10 years of data from New York found that even controlling for other factors, pretrial detention was the single greatest predictor of conviction.31
Other methods may be more effective than cash bail at getting people to come to court.
Phone call reminders increase appearance rates by 42% and mail reminders may increase appearance rates by as much as 33%.32
Unsecured monetary bail more effective than monetary bail at getting defendants to come to court.33
Two-way text messaging apps that notify defendants of pending court dates and allow them to communicate with their lawyers has dramatically reduced failure to appear rates. Uptrust, a relatively new not-for-profit tech company provides a messaging app for public defenders that allows defenders to notify their clients via text message of their pending court dates. Uptrust has achieved a 95% court appearance rate for those who receive this service.34
Examples from Other States
Washington, D.C. has been operating successfully without cash bail since the 1960s and officially eradicated financial conditions of release in 1992. Nearly all D.C. defendants are released either on their own signature or with non-monetary conditions.35 In the District of Columbia 90 percent of released defendants make all scheduled court appearances, and 91 percent of released defendants remain arrest free pre-trial.36 Both court appearance rates and rearrest rates are far better than the national average.37
In D.C., after arrest, the pretrial services agency conducts an interview with the accused and prepares a written report for the Judicial Officer who determines bail. This report that includes information about the person accused, their family, community ties, residence, employment, prior criminal record, and any additional verified information.38
Once the person appears before a judicial officer, the officer has four options:
1) Release the accused on personal recognizance or upon execution of an unsecured appearance bond;
2) Release the accused on a condition or combination of conditions;
3) Temporarily detain the person to permit revocation of conditional release; or
The goal is to use the least restrictive means necessary to ensure the person’s appearance in court and the safety of the community.39
After someone is arrested in New Jersey, a judge must release them, either upon their own recognizance, with certain conditions (such as reporting to a probation office) or with an unsecured monetary amount to ensure appearance.40 New Jersey uses a risk assessment tool, to help the Judge determine whether the defendant is likely to be threat to public safety.
The State may file a motion to keep the defendant detained pending trial and a pretrial detention hearing will then be held on the State’s motion. At this motion, the prosecutor must demonstrate by clear and convincing evidence that detention is necessary because the defendant is either a) a danger to the victim or the community (i.e. a grave public safety threat); b) a flight risk; or c) may obstruct the criminal process. If not convinced, the court may release the defendant with certain conditions, or upon their own recognizance.41
In 2017, New Jersey released all but 5.6% of defendants facing charges and reduced the state’s pretrial jail population by 20%.42 New Jersey’s elimination of cash bail did not lead to a rise in violent crime, to the contrary, the state saw no major bump in violent crime and for many serious crimes the rates have dropped.43
1. Illegal Globally, Bail for Profit Remains in U.S., New York Times (January 29, 2008).
4. Brian A. Reaves, U.S. Dep’t. of Justice, Bureau of Justice Statistics, Felony Defendants in Large Urban Counties, 2009 – Statistical Tables 1, 15 (2013).
5. Graph obtained from https://www.prisonpolicy.org/graphs/PA_Convicted_Status_1978-2013.html (accessed on May 25, 2018)
6. Harris County and Jackson Mississippi eliminated cash bail for misdemeanor offenses as a result of federal litigation that found the practice of cash bail unconstitutional.
7. Jessica Eaglin & Danyelle Solomon, Brennan Center for Justice: Reducing Racial and Ethnic Disparities in Jails: Recommendations for Local Practice 19-20 (2015).
8. Samuel R. Wiseman, Pretrial Detention and the Right to Be Monitored, 123 Yale L. J. 1344, 1356-57 (2014).
9. Justice Pol’y Inst., System Overload: The Costs of Under-Resourcing Public Defense 19 (2011).
10. Erika Kates, Wellesley Centers for Women, Moving Beyond Incarceration for Women in Massachusetts: The Necessity of Bail/Pretrial Reform 4 (2015); see also Col. Crim. Defense Inst., The Reality of Pre-Trial Detention: Colorado Jail Stories 6-7 (2015).
11. Am. Bar Ass’n, Crim. Justice Section, State Policy Implementation Project, Pretrial Release Reform 2 (2011).
12. Robynn Cox & Sally Wallace, The Impact of Incarceration on Food Insecurity among Households with Children 26 (2013).
13. U.S. Dep’t Of Justice, Bureau Of Justice Statistics, Mortality In Local Jails And State Prisons, 2000-2013 – Statistical Tables 10 (2015).
15. Tonia L. Nicholls, Zina Lee, Raymond R. Corrado, and James R. P. Ogloff, Women Inmates’ Mental Health Needs: Evidence of the Validity of the Jail Screening Assessment Tool (JSAT), 3 International Journal of Forensic Mental Health 167, 168 (2004).
16. U.S. Dep’t Of Justice, Bureau Of Justice Statistics, Mortality In Local Jails And State Prisons, 2000-2013 – Statistical Tables 12 (2015).
17. The Council of State Governments, Justice Reinvestment in Pennsylvania, (2017) avail. at https://csgjusticecenter.org/wp-content/uploads/2017/06/6.26.17_JR-in-Pennsylvania.pdf
18. Traci Schlesinger, Racial and Ethnic Disparity in Pretrial Criminal Processing, 11 (2005).
20. Arpit Gupta, Christopher Hansman, & Ethan Frenchman, The Heavy Costs of High Bail: Evidence from Judge Randomization 3 (Aug. 5, 2016).
21. Paul Heaton, Sandra Mayson, & Megan Stevenson, The Downstream Consequences of Misdemeanor Pretrial Detention 4 (2016).
22. Christopher T. Lowenkamp, Marie VanNostrand, Ph.D., Alexander Holsinger, Ph.D., The Hidden Costs of Pretrial Detention, Laura and John Arnold Foundation, November 2013, at 3. http://www.pretrial.org/download/research/The%20Hidden%20Costs%20of%20Pretrial%20Detention%20-%20LJAF%202013.pdf
23. Arpit Gupta, Christopher Hansman, & Ethan Frenchman, The Heavy Costs of High Bail: Evidence from Judge Randomization 3 (Aug. 5, 2016)
24. Michael Jones, Unsecured Bonds, the As Effective and Most Efficient Pretrial Release Option, Pretrial Justice Institute (2013)
25. Stevenson, Megan and Mayson, Sandra G., "Bail Reform: New Directions for Pretrial Detention and Release" (2017). Faculty Scholarship. 1745. http://scholarship.law.upenn.edu/faculty_scholarship/1745
26. Paul Heaton, Sandra Mayson, & Megan Stevenson, The Downstream Consequences of Misdemeanor Pretrial Detention 4 (2016).
27. Will Dobbie, Jacob Goldin, and Crystal Yang, The Effect of Pretrial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges, The American Economic Review 2018 avail at. https://pubs.aeaweb.org/doi/pdfplus/10.1257/aer.20161503
28. Thomas H. Cohen & Brian A. Reaves, U.S. Dep't. of Justice, Bureau of Justice Statistics, Pretrial Release of Felony Defendants in State Courts 7 (2007).
29. Matt Sledge, Community Bail Fund for Poor Defendants to Launch in Brooklyn, Huffington Post (Mar. 23, 2015), http://www.huffingtonpost.com/2015/03/17/brooklyn-community-bail-fund_n_6886836.html (Eighty-eight percent of those out of jail had their cases resolved without a conviction, compared to 38 percent of those in jail on bail.").
30. Arpit Gupta, Christopher Hansman, & Ethan Frenchman, The Heavy Costs of High Bail: Evidence from Judge Randomization (2016).
31. Nick Pinto, The Bail Trap, New York Times Magazine, Aug. 13, 2015 avail. At https://www.nytimes.com/2015/08/16/magazine/the-bail-trap.html.
32. Tim R. Schnacke, Michael R. Jones, and Dorian W. Wildermand, Increasing Court Appearance Rates and Other Benefits of Live-Caller Telephone Court-Date Reminders: The Jefferson County, Colorado, FTA Project and Resulting Court Date Notification Program, 48 COURT REVIEW 86, 89 (2012) (telephone live-caller experiment); Brian H. Bornstein et al., Reducing Courts’ Failure to Appear Rate By Written Reminders, 19 PSYCH., PUB. POLICY & L. 70 (2013).
33. Michael Jones, Unsecured Bonds, the As Effective and Most Efficient Pretrial Release Option, Pretrial Justice Institute (2013).
35. Pretrial Services Agency of District of Columbia, Release Rates for Pretrial Defendants within Washington D.C. (2016) avail. at https://www.psa.gov/sites/default/files/2016%20Release%20Rates%20for%20DC%20Pretrial%20Defendants.pdf.
36. Pretrial Services Agency of District of Columbia, Performance Measures, available at https://www.psa.gov/?q=data/performance_measures (accessed on May 25, 2018).
37. Stevenson, Megan and Mayson, Sandra G., "Bail Reform: New Directions for Pretrial Detention and Release" (2017). Faculty Scholarship. 1745. http://scholarship.law.upenn.edu/faculty_scholarship/1745. See also The national average for failure to appear for felony defendants is 17 percent and the national percentage of felony defendants who are rearrested while awaiting trial is 16 percent. Alusia Santos, Kentucky’s Protracted Struggle to Get Rid of Bail, The Marshall Project, (2015) avail. at https://www.themarshallproject.org/2015/11/12/kentucky-s-protracted-struggle-to-get-rid-of-bail
38. DC Code § 23–1303 (a).
39. DC Code § 23–1321 (a)-(b).
40. N.J.S.A. Rule 3:26-1. Right to Pretrial Release Before Conviction.
41. The Anniversary of Bail Reform: Money and Liberty Are No Longer Interwoven, New Jersey Law Journal, March 30, 2018 avail at https://www.law.com/njlawjournal/2018/03/30/the-anniversary-of-bail-reform/
42. New Jersey Judiciary, 2017 Report to the Governor and the Legislature
43. Joe Hernandez, It’s Been One Year Since New Jersey Ditched Cash Bail. Here’s How It’s Going, WHYY.ORG (Dec. 26, 2017).