An individual’s ability to afford bail is the single most important factor in determining if they are released to the community pretrial or if they await their trial from a jail cell.1 Courts regularly assign cash bail as a condition of pretrial release based on the belief that paying bail is necessary to ensure appearance in court and protect public safety—but evidence has shown this belief is unfounded. In reality, assigning cash bail fails to address the root causes that lead a minority of people to miss trial, undermines the safety of the arrested individual and the broader community, leads to racially and economically disparate cash bail assignments and pretrial detentions, and drains economic resources primarily from families and communities of color.
Overview of cash bail systems
Every three seconds, someone in the United States is arrested.2 This equates to more than 10.5 million arrests each year, the majority of which result in charges for low-level and nonviolent crimes.3 After someone is arrested but before their guilt or innocence has been determined, a judge—or sometimes police, prosecutors, or other legal actors—decides whether the individual should be released from custody or required to remain incarcerated as they await trial in pretrial detention. This determination is based on an assessment of the likelihood that the individual will appear in court and, sometimes, on an assessment of the potential threat the individual would pose to the community if released. These assessments, which are constrained by factors such as court resources, limited time, and language barriers, often do not provide the court with a sufficiently nuanced understanding of an individual’s circumstances. Nevertheless, the court determines, based on the available information, which conditions are necessary to ensure that the individual returns to court for their next court date and to promote public safety.
One of the most common conditions of pretrial release is the assignment of cash bail.4 Cash bail is an amount of money determined to be sufficient collateral to ensure an individual returns for their court appearances and remains arrest-free.5 Other release conditions can include rules and restrictions on communication, movement, association, and weapons; mandatory participation in treatment programs; and/or some form of monitoring. Sixty-one percent of people who are arrested for a felony are given a cash bail assignment, meaning their access to pretrial release hinges on one factor: their ability to afford the price put on their freedom.6 Commercial bail companies take advantage of this vulnerability and use it as an opportunity for profit by encouraging those in need of money to enter into predatory contracts for bail services. Commercial bail is the most common form of pretrial release, accounting for 49 percent of all felony pretrial releases and nearly 80 percent of releases with monetary conditions in 2009, the last time these data were collected at the federal level.7
Proportion of people charged with a felony and assigned monetary conditions who needed a commercial bail bond to afford release in 2009
Cash bail produces two-tiered systems of justice and reinforces the nation’s stark racial and economic disparities. People of color, particularly Black people, receive cash bail assignments at higher rates and greater amounts than similarly situated white people.8 These disparities result in significant racial differences in pretrial detention rates. Furthermore, people with more wealth are more likely to be able to pay for their release, while others with less financial means remain incarcerated because they cannot afford the cost of bail. While high bail amounts are regularly set for even nonviolent arrests,9 80 percent of people involved with the criminal legal system are legally indigent, meaning that they are “unable to afford the necessities of life.”10
Cash bail leads to increased pretrial incarceration
The continued reliance on cash bail throughout the United States has contributed significantly to staggering rates of pretrial detention. Between 1970 and 2011, the pretrial jail population increased by 433 percent, primarily due to an increase in the number of people being assigned cash bail.11 On any given day in 2022, 658,000 people are incarcerated under local authority in jails across the country, more than 80 percent of whom are awaiting trial and have not yet been convicted of a crime.12
The presumption of innocence—the principle that people are innocent until proven guilty—is a key tenet at the heart of the U.S. criminal legal system. Yet each year, hundreds of thousands of people are deprived of their liberty based simply on accusations of illegal activity. People who are wrongfully arrested, whose cases are eventually dropped, and who are ultimately found not guiltyare also often subjected to pretrial incarceration if they cannot afford bail, while individuals who are able to pay their bail can avoid pretrial incarceration, regardless of their guilt or innocence. Moreover, studies have shown that people are spending significant amounts of time incarcerated while awaiting trial. According to an investigation by the National Center for State Courts, the average time to disposition is 256 days for felony cases and 193 days for misdemeanors.13
Pretrial incarceration threatens personal and public safety
Pretrial incarceration itself poses a risk to public safety. The collateral consequences of incarceration, such as housing instability,14 child custody loss,15 and employment barriers,16 often create the conditions that lead to recidivism. Furthermore, evidence suggests that people who are incarcerated pretrial are more likely to be accused of future crimes than those released pretrial.17 For example, in Harris County, Texas, people arrested on misdemeanor charges who were incarcerated pretrial were charged with 22 percent more misdemeanors in the year following their incarceration than those who were released pretrial. People accused of felonies who were incarcerated were charged with 33 percent more felonies after 18 months.18
Even temporary pretrial incarceration, which may occur while loved ones try to procure the money for bail or hire a bail bond company, can lead to increased rates of recidivism. A recent study revealed that pretrial detention lasting more than 23 hours is associated with “a consistent and statistically significant increase in the likelihood of rearrest.”19 In fact, this study concluded that pretrial incarceration has a “criminogenic effect” on rearrests, meaning that it is a factor that increases crime.20
Pretrial incarceration also presents serious health and safety risks for those incarcerated. Incarceration leads to higher risk of contracting an infectious disease; exposes people to violence and trauma;21 and exacerbates medical conditions, including mental illness and substance use disorders.22
Current bail setting and commercial bail practices ignore the fact that most people who are arrested are safe to be in the community. The vast majority of people arrested in the United States are arrested on nonviolent charges. In 2016, fewer than 5 percent of arrests were for charges of violent crime.23 In 2020, the rates of property crime were approximately 2,100 per 100,000 people, while violent crime rates were 379 per 100,000 people.24 Although cash bail systems perpetuate the incarceration of underresourced people who pose little to no risk to public safety, its reliance on arbitrary bail schedules allows wealthy individuals to obtain release regardless of their risk to public safety.
Recent reforms have demonstrated that cash bail is unnecessary to protect community safety and ensure appearance in court. For example, many jurisdictions have implemented bail reform without any significant increase in recidivism rates.25 After New Jersey implemented bail reform in 2017, the state saw decreases in the rate of all categories of crime. Violent crime rates decreased 18 percent immediately following reform.26 In 2018, Philadelphia ended the practice of prosecutors requesting cash bail for many misdemeanors and nonviolent felonies without seeing an increase in recidivism.27 In Harris County, Texas, where misdemeanor bail reform was initiated under a consent decree in 2019, rearrest rates have remained stable.28 Despite widespread disinformation surrounding bail reform in New York City, a recent report by the city’s comptroller revealed that pretrial rearrest rates were nearly identical before and after bail reform was implemented.29
Evidence demonstrates that there is no significant difference in appearance rates when comparing cash bail and unsecured bonds, a pretrial release condition where an individual only has to pay the bail amount if they fail to appear in court. One study comparing cash bail with unsecured bonds found that appearance rates were actually lower when cash bail was assigned.30 The average appearance rate for similarly situated people assigned cash bail was 81 percent, compared with 88 percent for people who were assigned unsecure bonds.31 Assigning cash bail is also associated with recidivism increases of 6 percent to 9 percent.32
The commercial bail industry, which consists of companies that provide financing for bail bonds to secure pretrial release as well as the insurers that back those bonds, benefits significantly from the continued use of cash bail practices.
2-tiered cash bail systems
The practice of assigning cash bail as a condition of an individual’s pretrial release has led to two-tiered systems of justice in which people with money can return to the community while they await trial, while those without money are forced to choose between remaining incarcerated or entering into a predatory contract with a commercial bail company to obtain release.
Current systems for setting cash bail are based on arbitrary practices. Bail setters often rely on bail schedules—arbitrary lists of bail amount recommendations for different charges33—rather than conducting a meaningful assessment to determine the conditions that would best support a released individual, ensure their appearance in court, and protect public safety.34 Bail schedules vary across the country and even within states. In the neighboring California counties of Fresno and Madera, an arrest for public intoxication could result in a recommended bail assignment of $75 or $5,000, respectively.35
Bail setters regularly give high bail assignments without considering an individual’s ability to pay, even though most Americans lack the resources to cover many emergency expenses. In 2017, 57 percent of Americans could not afford a $500 emergency expense without incurring debt.36 Because of the systemic inequities in criminalization and enforcement practices that target people from underinvested communities, people involved with the criminal legal system tend to have fewer financial resources than the U.S. population as a whole. In fact, in 2019, 80 percent of people involved with the criminal legal system were assessed as being legally “indigent,” 37 meaning they were “unable to afford the necessities of life.”38 Still, the median bail amount for felonies in 2009 was $10,000,39 meaning the arrested individual would have to pay $1,000 to secure their release.
Cash bail has harmful and lifelong consequences
JaCari Letchaw, a single mother of five, faced a $60,000 bail assignment after going to collect the puppies her dog had delivered on her neighbor’s property. Her neighbor called the police and accused JaCari of stealing. JaCari’s children tried to raise money for her bail by selling their games and other possessions. In the two weeks she spent in jail before being bailed out by a charitable bail organization, JaCari lost her job and almost lost her house, and her children were forced to experience a traumatic separation from their mother.40
David’s (a pseudonym) ex-girlfriend fled the police while driving his car. The police later found and impounded the abandoned car. When David went to collect it, he was arrested on a felony charge of eluding the police. Despite having an alibi and credible witness statements, the court denied his request for an affordable bail amount. During the 84 days he spent in jail before his case was dismissed, David’s shared custody arrangement for his son was significantly altered. In addition, he lost his job, apartment, and car, became responsible for paying child support he could not afford, and was charged for impound fees that were greater than the vehicle’s worth.41
Djibril Niyomugabo was 18 years old when he was arrested for allegedly smashing a car window and breaking a bottle of expensive wine he found inside. Djibril was unable to afford the $200 bail required for his release and sat behind bars for three days before dying from suicide. H. James Telman, his former attorney, said Djibril “was a good kid” and believes the lack of $200 cost Djibril his life.42
Decision-making related to cash bail assignments produces stark racial disparities in the population of people incarcerated pretrial. People of color, particularly Black people, receive cash bail assignments at higher rates and greater amounts than similarly situated white people.43 When comparing similarly situated Black and white individuals, Black defendants are 3.6 percent more likely to be assigned bail, and they receive bail amounts that are, on average, $7,280 higher.44 Black defendants are also less likely to be released with no conditions or given nonmonetary conditions.45 Together, these disparities result in significant racial differences in the pretrial detention population. In 2002, the last time national race data of the pretrial detention population were collected, 69 percent of people detained were people of color. Black people represented 43 percent of the pretrial detention population, and Hispanic people made up nearly 20 percent of the population.46 At that time, Black people comprised only 12.2 percent of the total U.S. population, and Hispanic people made up 13.4 percent.47
Continued reliance on cash bail as a condition of pretrial release undermines the criminal legal system’s ability to administer justice and perpetuates and exacerbates racial and economic disparities. Recent bail reform efforts have demonstrated jurisdictions’ ability to reduce or eliminate cash bail while maintaining high rates of court appearance and continuing to protect public safety.
The disparities and negative outcomes that cash bail systems produce are compounded by the United States’ unique criminal legal system, which allows the use of commercial bail bonds to secure release. Operating without adequate regulation or oversight, the commercial bail industry employs unethical and violent tactics that harm the very people they claim to serve, most often low-income people of color. Eliminating the role that money plays in the pretrial process is a necessary step toward achieving pretrial justice.