Cash Bail Reform Is Not a Threat to Public Safety
In this article
Until recently, jurisdictions across the United States saw growing support for reforms to the pretrial system. There was broad recognition that mass, pretrial incarceration was driven by archaic cash bail systems, causing a variety of negative consequences for individuals and communities.1 In communities large and small, representing individuals from across the political spectrum, efforts to reform cash bail systems have proved successful at both maintaining public safety and reducing the harms of pretrial incarceration.2 Law enforcement and prosecutors have joined the ranks of cash bail reform proponents, recognizing that wealth-based decision-making is unjust, erodes public trust, and is not effective at maintaining public safety.3
However, rising crime rates and the onset of the COVID-19 pandemic changed the national narrative around cash bail reform. Violent crime has been rising across the country since 2020, primarily driven by greater gun violence.4 These concerning trends are taking place in cities and towns nationwide, regardless of their history with cash bail reform. Although there is no evidence linking cash bail reform to high crime rates—and a plethora of evidence to the contrary5—cash bail reform has become an easy target for politicians looking to demonstrate they are taking action to address violent crime.6
Don’t Blame Bail Reform for Gun Violence
The facts are clear: In jurisdictions where commonsense cash bail reforms have been implemented, those who await their trial in the community are no more likely to be re-arrested after bail reform was passed than before.7 Put simply, releasing more people has not led to higher crime rates.
The stories of individuals harmed by unjust cash bail systems, like the ones compiled in this issue brief, provide persuasive evidence of the need for reform.8 There are broad, long-term public safety benefits to having people remain connected to their families, their housing, and their jobs—rather than having them held unnecessarily.9 Fearmongering should not win the day over good policy that contributes to a holistic community approach to safety.
Broadening our understanding of public safety
Historically, both the general public and government officials have too narrowly defined public safety, basing it solely on metrics of crime and recidivism.10 But these are just two of a range of factors that influence the safety of communities. Recently, criminal legal reform advocates have initiated a national push to broaden our understanding of public safety to include factors such as community connections, economic resources, and access to employment, housing, and health care. This broader definition seeks proactive approaches and alternative responses to crime beyond more arrests and incarceration.11 By reducing harms caused by cash bail and pretrial incarceration,12 cash bail reforms offer an upstream approach to achieving broader public safety goals.
Reducing reliance on cash bail while maintaining public safety
More than 95 percent of crime in the United States is nonviolent; the vast majority of people who are arrested can safely await their trial in the community versus behind bars. At the same time, 80 percent of people in local jails in the United States have not been convicted of a crime.13 The number of people incarcerated pretrial increased 433 percent from 1970 to 2015, almost entirely due to increases in cash bail assignments, the amount of money assigned by the court that a person must pay to secure their release.14 As a result of excessive cash bail, hundreds of thousands of people are incarcerated each year not due to any real public safety concern, but rather due to a lack of money.
While some attempt to paint cash bail reform as dangerous and cash bail as a tool for public safety, evidence from jurisdictions that have reformed their cash bail practices tells a different story. Reducing reliance on cash bail has not led to a decrease in public safety. In places that have implemented cash bail reform, rates of pretrial re-arrest remain unchanged. In New York,15 New Jersey,16 Washington, D.C.,17 and Santa Clara County, California,18 for example, at least 99 percent of people completed the pretrial period without an arrest for a serious crime. Cook County, Illinois,19 Harris County, Texas,20 Kentucky,21 and Philadelphia22 similarly maintained stable re-arrest rates before and after reforms were implemented. And after cash bail reform was passed in New Mexico and Yakima County, Washington, a larger percentage of people completed the pretrial process without a new arrest.23
At the same time, numerous studies show pretrial incarceration has a “criminogenic effect,” meaning that it increases rather than decreases crime.24 One study found that cash bail assignment was associated with a 6 percent to 9 percent increase in recidivism.25 After 23 hours in pretrial incarceration, any additional time in detention has been “associated with a consistent and statistically significant increase in the likelihood of rearrest.”26
Many jurisdictions have made misdemeanors and other low-level, nonviolent charges ineligible for cash bail, requiring judges to consider additional release options, such as release on recognizance or release with conditions. Restricting the role that money plays in the pretrial process is also a vehicle for reducing racially and economically disparate outcomes.
Story spotlight: A young single mother is incarcerated pretrial, away from her child, due to unaffordable bail
According to reporting from The New York Times, M.O. was a 22-year-old single mother when she was arrested for driving with a suspended driver’s license. Living paycheck to paycheck, it was impossible for her to afford the excessive $2,500 bail that the court assigned her. As a result, M.O. spent three days in jail away from her young child, despite posing no individual or public safety risk.27
Each year, thousands of people like M.O. could safely remain in their community—yet they are forced to endure unnecessary incarceration even before they are convicted of a crime. They suffer severe, long-lasting, and far-reaching consequences of pretrial detention.28 Cash bail reform helps to ensure that mothers like M.O. can remain with their children and their families.
Maintaining public safety by considering people’s individual circumstances
Cash bail systems often rely on bail schedules—arbitrary lists of bail recommendations that vary depending on the charge and jurisdiction.29 Bail decisions have been described as “assembly line” justice, where bail decisions are made quickly, often by nonjudges, with little information about the person whose freedom is at stake.30 As a result of the pandemic,31 remote and video bail hearings are becoming more common; individuals may be denied the opportunity to meet with their lawyer—if they are fortunate enough to have one—and may never appear in person with the presiding judge.32 With hundreds of cases on each docket, it is not unusual for hearings to last just a few minutes. This limits the ability of bail setters to assess a person’s individual circumstances such as family obligations, employment status, or other important considerations.33 Cash bail reform allows for, and sometimes requires, bail decision-making be informed by a more comprehensive understanding of people’s individual circumstances. This allows for bail setters to provide a case-by-case assessment to determine appropriate conditions of release and assign supportive community-based supports, all of which meaningfully contribute to public safety.
The importance of access to counsel
Access to an attorney at an initial bail hearing can play an important role in bringing people’s individual circumstances to the attention of bail setters. Despite substantial evidence that access to counsel during a first appearance significantly improves outcomes, most states do not require counsel to be provided for bail hearings.34 Studies have demonstrated that people with counsel at their first appearances are more likely to be released without cash bail or have a bail amount reduced.35
The presence of counsel at bail hearings also increases equity and improves the efficiency of the legal system. Access to counsel has been demonstrated to reduce racial disparities in pretrial incarceration rates,36 and multiple studies suggest that it can decrease overall criminal legal spending, reduce courts’ case burdens, and improve community perception and trust of the criminal legal system.37 In recent years, Illinois, Nebraska, Utah, and West Virginia have created a right to counsel for bail hearings.38
Recognizing that individualized decision-making improves outcomes at the pretrial stage and ensures that a person’s specific circumstances are appropriately considered, some jurisdictions have implemented reforms that require that judges take into consideration an individual’s ability to pay when assigning cash bail. This ensures access to wealth is not a determining factor in who is incarcerated pretrial. In jurisdictions where ability to pay is not considered, the consequences of being assigned unaffordable cash bail can be life-changing.39
Story spotlight: A man loses his home, job, and car after spending months in jail pretrial due to high bail
As published in Wisconsin Watch, D’s ex-girlfriend fled the police while driving his car. The police later found and impounded the abandoned car. When D arrived to collect it, he was arrested on a felony charge of eluding the police. D’s jurisdiction in northeast Wisconsin had no requirement to consider ability to pay when assigning cash bail. Despite having an alibi and credible witness statements, the court denied his request for an affordable cash bail amount. During the 84 days he spent in jail before his case was dismissed, D’s shared custody agreement was significantly altered, and he lost his job, apartment, and car.40
Supporting people in the community pretrial while disrupting the root causes of crime
Every person has unique social, health, and economic factors that affect their likelihood of returning to court or remaining arrest free. The conversation about cash bail reform often overlooks the opportunities that such reforms create to provide people with community-based services to improve their lives and address their unmet needs. Local bail reform efforts often include establishing or increasing funding for pretrial services agencies that provide services, including monitoring and check-ins, transportation support, court reminders, and connections to voluntary social services.41 What’s more, community bail funds, often organized by grassroots groups that seek to provide a pathway to freedom for those assigned unaffordable cash bail amounts, have been expanding across the country.42 Typically based on some kind of referral process, these funds provide money to pay cash bail on behalf of people who cannot afford it. Similar to pretrial services agencies, community bail funds offer services to help address the complex factors that may lead to an arrest and work to address them at the root. Bail funds and pretrial services agencies have demonstrated success in supporting released individuals while ensuring public safety by disrupting the factors that ultimately lead to crime.
Story spotlight: A woman experiencing housing insecurity finds housing through supportive pretrial services
According to accounts from the Bail Project, N, a Latina transgender woman, was arrested and incarcerated in Los Angeles after being accused of stealing a bike. N was experiencing homelessness at the time of her arrest and was not able to afford her $7,500 cash bail assignment. For four months during the pandemic, N was incarcerated in the Men’s Central Jail in Los Angeles until she was bailed out by the Bail Project. With the support of the Bail Project and PATH—People Assisting the Homeless, N was able to find temporary housing.43
By conducting individualized assessments with those released, community bail funds and pretrial services agencies provide people with access to mental health and substance use disorder treatment as well as benefits access; support their effort to find housing and employment; and assist people who seek further education. In providing supportive resources and services, these funds and agencies address the root causes that lead to crime rather than respond after the fact. Without cash bail reform, many people do not have access to the resources necessary to support them during the pretrial process.
The evidence is clear: Cash bail reform is not a threat to public safety. In fact, it can play a critical role in achieving broad public safety goals outside of simply reducing crime. Reliance on cash bail produces vast negative consequences, as evidenced by the experiences of thousands of people who can safely remain in the community pretrial yet are unnecessarily incarcerated due to their inability to pay bail. Their stories—often overshadowed by rare cases sensationalized through media coverage or by those with an interest in maintaining current cash bail practices—give a more complete picture of how current cash bail systems operate and how they must change to balance the goals of public safety and justice.
- Bernadette Rabuy and Daniel Kopf, “Detaining the Poor: How money bail perpetuates an endless cycle of poverty and jail time” (Northampton, MA: Prison Policy Initiative, 2016), available at https://www.prisonpolicy.org/reports/incomejails.html; Léon Digard and Elizabeth Swavola, “Justice Denied: The Harmful and Lasting Effects of Pretrial Detention” (New York: Vera Institute of Justice, 2019), available at https://www.vera.org/downloads/publications/Justice-Denied-Evidence-Brief.pdf.
- Tiana Herring, “Releasing people pretrial doesn’t harm public safety,” Prison Policy Initiative, November 17, 2020, available at https://www.prisonpolicy.org/blog/2020/11/17/pretrial-releases/.
- Georgetown University Law Center, “More Than 80 Current and Former Prosecutors and Law Enforcement Leaders Call for Bail Reform in Legal Filing,” Press release, January 30, 2019, available at https://www.law.georgetown.edu/icap/our-press-releases/more-than-80-current-and-former-prosecutors-and-law-enforcement-leaders-call-for-bail-reform-in-legal-filing/.
- Eugenio Weigend Vargas, “The Recent Rise in Violent Crime Is Driven by Gun Violence,” Center for American Progress, June 3, 2022, available at https://www.americanprogress.org/article/the-recent-rise-in-violent-crime-is-driven-by-gun-violence/.
- Allie Preston and Rachael Eisenberg, “Don’t Blame Bail Reform for Gun Violence,” Center for American Progress, June 23, 2022, available at https://www.americanprogress.org/article/dont-blame-bail-reform-for-gun-violence/.
- Anna Gronewold and Erin Durkin, “Democrats’ fight over bail reform might be a fight for the party’s direction,” Politico, March 27, 2022, available at https://www.politico.com/news/2022/03/27/democrats-bail-reform-partys-progressive-moderate-00020455.
- Herring, “Releasing people pretrial doesn’t harm public safety.”
- Bryce Covert, “Bail Reform Helps Countless People. Why Don’t We Hear More of Their Stories?”, The Appeal, July 19, 2022, available at https://theappeal.org/bail-reform-success-stories-media-coverage/.
- Kimberly Burrowes, “Can Housing Interventions Reduce Incarceration and Recidivism?”, Urban Institute Housing Matters, February 27, 2019, available at https://housingmatters.urban.org/articles/can-housing-interventions-reduce-incarceration-and-recidivism.
- Nicole D. Porter, “Expanding Public Safety in the Era of Black Lives Matter,” University of Miami Law Review 70 (2) (2016): 533–555, available at https://www.sentencingproject.org/wp-content/uploads/2016/05/Expanding-Public-Safety-in-the-Era-of-Black-Lives-Matter.pdf.
- Wilder Research, “Social Conditions for Public Safety” (St. Paul, MN: 2020), available at https://www.wilder.org/sites/default/files/imports/Kingston_PreventionLitReview_4-20.pdf.
- Wendy Sawyer and Peter Wagner, “Mass Incarceration: The Whole Pie 2022” (Northampton, MA: Prison Policy Initiative, 2022), available at https://www.prisonpolicy.org/reports/pie2022.html.
- Digard and Swavola, “Justice Denied.”
- Office of the New York City Comptroller Brad Lander, “NYC Bail Trends Since 2019” (New York: 2022), available at https://comptroller.nyc.gov/wp-content/uploads/documents/NYC_Bail_Trends_Since_2019.pdf.
- Glenn A. Grant, “Annual Report to the Governor and the Legislature” (Trenton, NJ: New Jersey Courts, 2020), available at https://www.njcourts.gov/courts/assets/criminal/2020cjrannual.pdf.
- Herring, “Releasing people pretrial doesn’t harm public safety.”
- Don Stemen and David Olson, “Dollars and Sense In Cook County: Examining the Impact of General Order 18.8A on Felony Bond Court Decisions, Pretrial Release, and Crime” (Safety and Justice Challenge, 2020), available at https://safetyandjusticechallenge.org/resources/dollars-and-sense-in-cook-county/.
- Brandon L. Garrett and others, “Monitoring Pretrial Reform in Harris County: Fourth Report of the Court-appointed Monitor” (Harris County, Texas: Independent Monitor for the O’Donnell v. Harris County Decree, 2022), available at https://jad.harriscountytx.gov/Portals/70/documents/ODonnell-Monitor-Fourth-Report-Final.pdf?ver=0KyJYoW_QePq2J2VntQ8fg%3d%3d.
- Herring, “Releasing people pretrial doesn’t harm public safety.”
- Christopher Lowenkamp, “The Hidden Costs of Pretrial Detention Revisited” (Houston: Arnold Ventures, 2022), available at https://craftmediabucket.s3.amazonaws.com/uploads/HiddenCosts.pdf.
- Arpit Gupta, Christopher Hansman, and Ethan Frenchman, “The Heavy Cost of High Bail: Evidence from Judge Randomization,” The Journal of Legal Studies 45 (2) (2016): 471–516, available at https://www.journals.uchicago.edu/doi/abs/10.1086/688907.
- Ibid.; Lowenkamp, “The Hidden Costs of Pretrial Detention Revisited.”
- Elizabeth Wydra, “When cash bail violates the Constitution,” My San Antonio, October 10, 2017, available at https://www.mysanantonio.com/opinion/commentary/article/When-cash-bail-violates-the-Constitution-12267460.php; The Editorial Board, “Locked Up for Being Poor,” The New York Times, May 5, 2017, available at https://www.nytimes.com/2017/05/05/opinion/locked-up-for-being-poor.html.
- Rabuy and Kopf, “Detaining the Poor”; Digard and Swavola, “Justice Denied”; U.S. Commission on Civil Rights, “The Civil Rights Implications of Cash Bail” (Washington: 2022), available at https://www.usccr.gov/files/2022-01/USCCR-Bail-Reform-Report-01-20-22.pdf; Will Dobbie, Jacob Goldin, and Crystal S. Yang, “The Effect of Pretrial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges,” American Economic Review 108 (2) (2018): 201–240, available at https://www.aeaweb.org/articles?id=10.1257/aer.20161503.
- Justia, “Bail Schedules,” available at https://www.justia.com/criminal/bail-bonds/bail-schedules/ (last accessed May 2022).
- Jennifer Williams, “Stop Assuming Money Bail is an Effective Tool for Criminal Justice,” American Bar Association, February 18, 2020, available at https://www.americanbar.org/groups/judicial/publications/appellate_issues/2020/winter/stop-assuming-money-bail-is-an-effective-tool-for-criminal-justice/.
- National Legal Aid and Defender Association, “Access to Counsel at First Appearance: A Key Component of Pretrial Justice” (Washington: 2020), available at https://www.nlada.org/sites/default/files/NLADA%20CAFA.pdf.
- Michael Barajas, “The Case to End Assembly Line Justice for Poor People in Harris County,” The Texas Observer, October 6, 2017, available at https://www.texasobserver.org/the-case-to-end-assembly-line-justice-for-poor-people-in-harris-county-and-beyond/.
- Williams, “Stop Assuming Money Bail is an Effective Tool for Criminal Justice.”
- National Legal Aid and Defender Association, “Access to Counsel at First Appearance.”
- Paul Heaton, “Enhanced Public Defense Improves Pretrial Outcomes and Reduces Racial Disparities,” Indiana Law Journal 96 (3) (2021), available at https://www.repository.law.indiana.edu/ilj/vol96/iss3/2/.
- National Legal Aid and Defender Association, “Access to Counsel at First Appearance.”
- Heaton, “Enhanced Public Defense Improves Pretrial Outcomes and Reduces Racial Disparities”; Isabella Jorgensen, and Sandra Susan Smith, “The Current State of Bail Reform in the United States: Results of a Landscape Analysis of Bail Reforms Across All 50 States” (Cambridge, MA: Harvard Kennedy School, 2021), available at https://www.hks.harvard.edu/publications/current-state-bail-reform-united-states-results-landscape-analysis-bail-reforms-across.
- Lowenkamp, “The Hidden Costs of Pretrial Detention Revisited.”
- Emily Hamer and Sheila Terman Cohen, “Poor stay in jail while rich go free: Rethinking cash bail in Wisconsin,” Wisconsin Watch, January 20, 2019, available at https://wisconsinwatch.org/2019/01/poor-stay-in-jail-while-rich-go-free-rethinking-cash-bail-in-wisconsin/.
- Barry Mahoney, “Pretrial Services Programs: Responsibilities and Potential” (Washington: U.S. Department of Justice National Institute of Justice, 2001), available at https://www.ojp.gov/pdffiles1/nij/181939.pdf.
- Cynthia A. Golembeski and Matthew Bakko, “Community bail funds: the answer to inequitable cash bail?”, The Baltimore Sun, July 26, 2022, available at https://www.baltimoresun.com/opinion/op-ed/bs-ed-op-07xx-community-bail-funds-20220726-bwcrzccihncbxdm63t2j3uk34a-story.html.
- The Bail Project, “Annual Report 2021” (Pasadena, CA: 2021), available at https://bailproject.org/wp-content/uploads/2021/11/the_bail_project_annual_report_2021_web.pdf.
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