Bail Reform

According to long-standing practice, people charged with a crime are held in jail pending trial if a court has determined that they pose a flight risk or a threat to public safety. In the United States today, however, an individual’s economic status often determines whether he or she awaits trial in jail. The ability to put up bail money is the deciding factor rather than the community’s interests or the demands of good public policy. 

Between 1990 and 2009, the share of pretrial releases involving financial conditions rose to 61 percent from 37 percent, and nearly all of that reflected an increase in the prevalence of surety bonds, the type of bail that typically involves debt to a bail bondsman, according to a study by the U.S. Bureau of Justice Statistics. About 9 in 10 detained defendants had a bail amount set but were unable to meet the financial conditions required to secure release, according to the BJS report.

Those factors help explain why, on any given day in 2016, 63 percent of the jail population had not been convicted of any crime. Bail is supposed to grant defendants maximum liberty as they await trial while providing some assurance that they are not a flight risk or a danger to the community, but the current state of bail across the country seems to have strayed from its original intent. 

 

Key Definitions provided by Legal Information Institute at the Cornell Law School

Bail Cash or a bond given to the court by a prisoner to secure conditional release from custody. The prisoner promises to return for judicial proceedings at a later time. A failure to return triggers the bond obligation and allows the court to keep any money given as security.
Bail Bond An obligation to pay the court if a criminal defendant fails to meet the terms of conditional release from custody. Many bail bonds are signed by the defendant and the defendant's sureties (e.g., a bondsman). Some bail bonds are signed by the defendant only, who may need to deposit money with the court as security for the bond.
Surety Someone who assumes direct liability for another's obligation. Financial creditors may require the debtor to find a surety, who then signs the loan agreement along with the debtor. Although similar to a guarantor, a financial surety's liability arises as soon as the agreement is closed.
Security Property that is given or pledged to guarantee the performance of an obligation.
National Center for State Courts
Your state’s fines, fees and bail practices

The U.S. has a long history with cash bail systems, currently set by either a judge or a preset schedule. In both instances, bail amounts can be prohibitively expensive. Amounts set by judges have been shown to be a function of the judge a defendant receives rather than the alleged crime or individual factors. Many jurisdictions use schedules that base bail amounts on the charge. While bail schedules can help to ensure that people charged for the same crime are treated equally, they do not account for individual factors such as prior offenses, potential threat to society or how jail time could threaten someone’s housing or employment. Low-income people often cannot afford bail amounts, forcing them to wait in jail if they want to go to trial. Additionally, people who have the means to post bail can be released regardless of the threat they pose to others. The cash bail system has various negative effects:

  • Jail overcrowding and cost: With overburdened courts, a person can wait months for a trial. This leads to jail beds filled by people facing low-level charges who cannot afford bail. It also imposes a significant cost on local jails — about $22 billion a year nationally. Jail overcrowding can also lead to emergency releases of pretrial defendants without regard to risk.
  • Forced pleas: The inability to pay for bail places an enormous amount of pressure on defendants to secure their release as soon as possible. Every day spent in jail could mean losing one’s job, housing or child custody. For many, this is a price they cannot pay, thus forcing them to plead guilty, regardless of whether they committed the crime. Ironically, because people accumulate time served, many times people can walk free if they plead guilty but would have to wait for months in jail if they want to argue their innocence before a jury.
  • Recidivism: A randomized study of bail systems in Philadelphia and Pittsburgh found that being assigned cash bail made a person 12 percent more likely to be convicted of the crime at hand and 6 to 9 percent more likely to recidivate. This is likely because of the destabilizing consequences of even a short time in jail.

States and jurisdictions have begun to move away from the ineffective cash bail system. Instead of allowing ability to pay to determine whether a person can freely await trail, a risk assessment tool is used to evaluate whether a defendant poses a flight risk or a threat to society. 

Latinos and noncitizens

As Latinos are more likely to be assigned cash bail as a condition of release  (Latino Disparities in the Criminal Justice System) and more likely to come from a low-income background, bail reform would certainly help strengthen Latino communities and address disparities. 

Yakima County, an agricultural community in eastern Washington which is 48.8 percent Latino, began a pretrial supervision program that largely eliminated cash bail. This has proven to have positive impacts for the Latinos. The Pretrial Justice Institute reports that before the program, 49 percent of Latinos were released before trial, compared with 64 percent of white defendants. After three years of reforms, 75 percent of Latinos were released before trial — an increase of 26 percentage points, which surpassed the release rate of white defendants.

Reforming the bail system can also help noncitizens avoid immigration consequences. Jail is perhaps the single easiest place for immigration agents to apprehend a noncitizen. Once a defendant is booked, digital information sharing alerts Immigration and Customs Enforcement (ICE) that the person is in custody. Without the possibility of posting bail, ICE agents can pick someone up at their discretion with minimal resources, regardless of whether the person is found guilty of a crime. Each day a noncitizen sits in jail awaiting trial makes him or her more vulnerable to immigration enforcement.

New Jersey Pretrial Justice Manual

2017 Report to the Governor and Legislature

Video: How New Jersey bail reform kept a small mistake from having cascading consequences

New Jersey

In 2017, New Jersey overhauled its pretrial justice system to largely eliminate the practice of cash bail. While bail remains an option, most judges do not use it. In a report to the governor and the Legislature, New Jersey courts reported a 20 percent decrease in the pretrial jail population from January 2017 to January 2018. 

In the first year of reform, officers made 44,319 arrests and prosecutors recommended that 19,366 of those cases be detained until trial. Using the Laura and John Arnold Foundation’s Public Safety Assessment tool, judges ordered only 8,043 of those people to be held—which is less than 20 percent of total arrests. While New Jersey has seen notable results, the state faces challenges in finding a sustainable funding model for the new system. 

 
New Jersey courts reported a 20 percent decrease in the pretrial jail population from January 2017 to January 2018.
 

California

A recent court ruling and legislation point to change in California. In January 2018, a panel of three federal appellate judges in San Francisco ruled unanimously that the detention of Kenneth Humphrey was unconstitutional. Humphrey, a 63-year-old retired shipyard worker, was given a $600,000 bail, later reduced to $350,000, on charges that he threatened a neighbor in his senior living facility and stole $7 and a bottle of cologne. The ruling could have major implications for California, where the median bail amount is $50,000 — five times the national average

An overhaul of the state’s bail system, SB 10, passed the state Senate and awaits a vote in the Assembly (as ofJune 14, 2018) with a strong show of support.

Kentucky

Kentucky has been a leader in bail reform since 1976, when it outlawed for-profit bail, strengthening the law in 2011 by directing judges to release those with low- and moderate-risk scores based a risk assessment tool