The Case for Cash Bail Reform

What is cash bail?

After someone is arrested but before they have had their day in court or received a conviction, a decision is made by a bail setter—often a judge, police, or prosecutor, depending on the jurisdiction—about whether to release that individual or hold them in pretrial detention while they await trial. When deciding to release someone pretrial, the bail setter can assign different conditions that must be met in order for the individual to remain in the community.

Most jurisdictions in the country rely heavily on the assignment of cash bail, an amount of money that must be paid to secure release. While this cash amount is often assumed to be necessary collateral to ensure that an individual appears in court for their trial and remains arrest free, there is significant evidence that assigning cash bail is not necessary or effective in achieving either goal. Furthermore, it frequently results in the unnecessary jailing of people accused of minor offenses who are safe to be in the community pretrial.

What is wrong with cash bail?

• Cash bail harms public safety, as it has been associated with a 6 to 9 percent increase in recidivism. Indeed, pretrial incarceration of more than 23 hours, which is often the result of unaffordable cash bail, has been tied to a “consistent and statistically significant increase in the likelihood of rearrest.”
• Cash bail undermines the presumption of innocence—the idea that people should not be subject to punishment for a crime until they are convicted. Today, more than 80 percent of people in U.S. jails under local authority have not been convicted and are therefore legally innocent of the crime of which they have been accused. Most of these people are safe to be in the community pretrial.
• Cash bail criminalizes poverty and creates a two-tiered system of justice by which those with money for release can return to their communities, while those without money are forced to remain incarcerated while they await trial.
• Cash bail perpetuates stark racial disparities in pretrial outcomes. Black people receive cash bail assignments at higher rates and greater amounts than similarly situated white people. Moreover, they are less likely to be released without conditions, resulting in stark racial disparities in who is incarcerated pretrial.
• Cash bail is a source of wealth extraction that disproportionately harms those with the fewest financial resources. Strikingly, 80 percent of people involved with the criminal legal system are legally indigent, meaning that they lack the resources to afford necessities. Yet the median bail amount for felonies is $10,000. Every year, millions of people without the resources to pay bail are forced to turn to commercial bail companies to secure release, exposing them to abusive and manipulative industry practices that can result in long-term, or even lifelong, debt.
• Cash bail systems cost taxpayers billions of dollars each year. In 2017, taxpayers spent about $38 million each day to incarcerate people pretrial. After accounting for the indirect costs of pretrial incarceration, the true cost of pretrial incarceration is estimated to be close to $140 billion annually.

How can jurisdictions fix the problem?

Acknowledging that cash bail systems make us less safe while perpetuating unjust practices and outcomes, many jurisdictions across the United States are exploring ways to reform pretrial processes to ensure that people who are safe to be in the community pretrial have access to just pretrial release.

Jurisdictions are implementing a variety of reforms that can help reduce or eliminate the use of cash bail, including by:

• Eliminating cash bail: Some jurisdictions have implemented policies that safely move away from assigning bail, particularly in cases where the underlying charge is a misdemeanor or a nonviolent charge. Instead of relying on the arbitrary practice of assigning cash bail, bail setters in these jurisdictions are using a more robust process to consider individual factors and more accurately assess flight risk and public safety.
• Increasing investments in pretrial services: Pretrial services can play a critical role in reducing reliance on cash bail by providing services and supports to people in the community while they await their trial. Services such as transportation support, child care, and court reminders, for example, help ensure that people are able to appear in court, while other resources, such as benefit enrollment and job and housing supports, can help stabilize individuals and make communities safer.
• Ensuring counsel at first appearance: Attorneys help ensure that people’s individual circumstances are considered by bail setters. Creating a right to counsel at first appearance can, therefore, play an important role in decreasing reliance on cash bail, as it increases the likelihood that people are released without cash bail or that their bail amount is reduced.

Why are some opposed to ending cash bail?

Prior to the pandemic, there was widespread bipartisan support for bail reform, as policymakers across the political spectrum recognized that it could be used as a tool to increase safety and justice while decreasing costs to taxpayers. However, in recent years, growing concerns about crime and safety have led elected officials and others to blame bail reform for the pervasive gun violence across the country and paint it as a threat to community safety, despite significant evidence to the contrary. The reality is that there is no credible evidence that bail reform is responsible for increases in violent crime. In fact, the status quo of cash bail actually undermines safety in a variety of ways.

One common misperception is that ending cash bail and reforming the pretrial system could endanger the public even more than the status quo. However, studies from jurisdictions across the country demonstrate that rates of appearance for trial after reforms were implemented are similar or better to rates of appearance before those reforms. Similarly, the rates of rearrest for people who were released pretrial are comparable with those before the reforms were instituted.

Who is implementing reforms?

• Harris County, Texas, implemented bail reform as part of a consent decree after finding thousands of instances of constitutional violations in the county’s pretrial process. Prior to reform, bonds of $500 or more were set in nearly all misdemeanor cases. Yet in 2022— three years after the consent decree was created—two-thirds of misdemeanor cases had bonds of $100 or less. Moreover, from 2015 to 2021, the number of people rearrested within a year of an arrest for a misdemeanor decreased, while the share of people who were rearrested remained stable. The number of guilty pleas also declined by more than 24,000.
• The Illinois Legislature passed the SAFE-T Act in 2021, which will eliminate the use of cash bail in all cases. In recent years, Illinois policymakers and advocates have worked tirelessly to push forward this law and rebuff attempts to weaken or repeal it, including a recently resolved legal challenge in the Illinois Supreme Court. On September 18, 2023, the SAFE-T Act will be implemented statewide. Prior to the passage of this law, the Cook County Circuit Court issued General Order 18.8A in 2017, which created a presumption of release without monetary bail for those eligible for release and required that cash bail be set at an affordable amount. A 2020 study revealed that after this reform, there was a 4 percent increase in the rate of pretrial release and 31 percent more people were released without cash bail. There was no change, however, in the rate of pretrial rearrest before and after reform, with 97 percent of people remaining arrest free for a violent crime after reform.
• New Jersey passed a constitutional amendment along with its Bail Reform and Speedy Trial Act in 2017 that essentially eliminated cash bail. As a result, only 19 people were assigned cash bail in 2020, and most of those assignments were made after an initial release without cash bail. That same year, only 1.2 percent of people on pretrial release went on to be rearrested for a serious offense, and 97 percent of people appeared in court. Between 2015 and 2022, New Jersey’s pretrial jail population decreased by 20 percent.
• New York state’s bail reform, contrary to pervasive fearmongering and misinformation, has been effective in maintaining safety while also ensuring just pretrial release. Both rearrest rates for a violent felony and overall rearrest rates have remained stable after bail reform in 2019. During the same time, 24,000 fewer people were assigned cash bail, people assigned cash bail saved an average of $4,267 per person, and there were 1.9 million fewer nights spent in jail.
• Washington, D.C., was an early pioneer in pretrial reform, taking steps to eliminate the use of cash bail as early as the 1960s. The positive results of this reform have been maintained over decades. In 2019, more than 90 percent of arrested people were released without cash bail, 88 percent appeared for court, 87 percent remained arrest free for any charge, and 99 percent remained arrest free for a violent crime.

Conclusion

For too long, our pretrial systems have relied heavily on cash bail, to the detriment of individuals and entire communities. Cash bail reform is an essential step to creating safer communities and ensuring that all individuals have access to a just pretrial process.