The Money Bail Debate & Why We Need Reform

Dec. 17, 2021 – Changes to money bail policies have proliferated over the past few years. Here’s what they mean and why they matter.

Of all the issues with our systems of criminal justice, money bail has always seemed to me to be the most obvious opportunity for reform.

Thankfully, the past few years have offered a lot of hope for widespread change. However, a few organizations and industries have argued such reforms embolden criminals.

So let’s look at bail reform, what advocates and opponents claim, and what the data show, so you can keep up with and challenge narratives you may see in the news or online.

Money Bail & Its Impact

Money bail—that is, cash bail or bail bonds—in the U.S. has been a staple for the last 200-plus years. Here’s how criminal justice reform outlet The Marshall Project defines it (specifically cash bail):

Cash bail is a refundable, court-determined fee that a defendant pays—regardless of guilt or innocence—to await trial at home instead of in jail.

(Cash bail and bail bonds are not technically the same thing, but for this blog we’ll treat them so because their impact is shared.)

After all is said and done, that money is supposed to be returned to the person, incentivizing them to appear in court rather than flee.

This seems practical on face value, especially when arrests relate to violence. But the majority of those arrested are detained for nonviolent (and sometimes incorrect) reasons, meaning that even if the alleged offense is small or trivial, a person might still be jailed for hours, days, weeks, etc., if they can’t post bail.

So whether or not a person is innocent and regardless of why they were arrested, they’ll likely have to pay something to avoid jail time. This issue is so common that the collective jail population in the U.S. is mostly those arrested and detained but not convicted:

So most jailed folks aren’t convicted. Keep this in mind when considering this next data point: Virtually the entire increase in the collective local jail population from 1997 to 2017 was of people who weren’t convicted:

To put it mildly, the morality of this practice is objectionable. How can we promise a person—who is presumed innocent until proven otherwise—their rights when we detain them without conviction?

“But if they’re innocent, they can simply post bail and have their money returned after appearing in court,” you might say. But it’s not that simple.

Many detainees can’t post bail because a) they’re low-income, b) bail is set higher than what they can afford, or c) both of these things.

So if a person can’t afford their bail, they can turn to private bail bond services—which may have high interest rates for repayment—or remain jailed.

As you likely know, even a short stint in jail can have profound and negative impacts on the outcome of a person’s court appearance and their broader well-being. When in jail, a person has less “bargaining power” regarding their case; simply being in jail, even if they’re innocent, hurts their case and increases the likelihood that they’ll be found guilty.

Plus, time in jail prevents a person from working and tending to personal and family obligations, and it severely affects their mental health. In an especially devastating instance, 16-year-old Kalief Browder was detained for stealing a backpack and spent three years at New York City’s Rikers Island awaiting trial. He was released without being charged, but his time in jail so heavily scarred him that he later took his own life.

So plainly, the stakes for reform are high.

Reform & Where It’s Happening

This is not an unnoticed phenomenon. While progress was gradual for much of the past three decades, money bail reform has become more widespread in recent years.

Changes can take a few different shapes, but generally reform involves decreasing (or eliminating) use of money bail while improving a court’s risk assessment tools. Together, these ensure more people avoid jail time while retaining considerations for potentially violent detainees.

(The use of risk assessment tools can be controversial, as they rely in some part on a judge’s discretion. Like setting bail, this tool can similarly be impacted by a judge’s biases.)

Here’s a list of notable changes made in state and local jurisdictions:

  • Washington, DC actually abolished cash bail in 1992.
  • In 2017, district and state’s attorneys in places like Philadelphia and Cook County, Illinois, said they’d decline to seek bail for some charges.
  • A 2017 law in New Jersey requires prosecutors to argue the defendant is a risk of flight or harm to the public for bail to be set.
  • Massachusetts enacted a law in 2018 that requires judges to account for a person’s income/ability to pay when setting bail.
  • In 2019, New York State eliminated bail for lower level offenses.
  • The state’s attorney for Chittenden County, the largest county in Vermont, instructed deputy attorneys not to seek bail for lower level offenses in 2020.
  • This year, Illinois became the first state to explicitly eliminate all cash bail through legislation.
  • Also this year, Utah, after enacting and then repealing a 2020 bail reform law, passed a law similar to Massachusetts’.

Regrettably, reforms in states like Alaska and California over the last decade stalled or were rolled back.

Advocates & Opponents of Reform

All of this being said, you can probably guess which aspects of these reforms that advocates and opponents promote or detract.

Criminal justice reformers and advocacy groups (largely responsible for drawing attention to this issue) have focused on the stuff outlined earlier—the wrongful detention of presumably innocent folks, how money bail essentially criminalizes being poor, its disproportionate impact on people of color, and jail’s gross impact on a person’s life—to argue for bail reform.

On the other side, the private bail bond insurance industry and law enforcement oppose reforms.

The former’s opposition is not a hard one to grasp. The $2 billion industry stands to lose its entire business if bail reform is carried out across the U.S.

Meanwhile, law enforcement leaders and organizations have asserted that tinkering with money bail would lead to rampant crime since the likelihood of serving time in jail—even while being technically innocent!—would decrease. As just one example from this past summer alone, Chicago’s police superintendent blamed bail reform for the city’s crime spike, claiming criminals are now emboldened.

However, the growing body of research on bail reform refutes this claim…

Data Show Bail Reform Works

In a nutshell, research shows shrinking or eliminating the use of money bail has had significant and positive impacts in communities. For example, following Cook County’s bail reforms in 2017, the county jail population decreased by nearly half over the following two years.

At the same time, there was no increase in crime correlating with this change. Once again, bail reform did not lead to an increase in crime. Instead, the crime increase pointed out by law enforcement leaders like Chicago’s should be attributed elsewhere. (After all, crime increased in places that haven’t enacted bail reform as well.)

Still, don’t expect opponents to change sides in the near future. While rare, there have been high profile cases of individuals—who would have been detained under normal money bail policies—committing crimes, as was the case in Chicago this summer. Reconciling those instances with the broader data can be difficult for those on either side of this debate, but in the end…

Eliminating money bail would go a long way in the decarceration of our communities. Our common bail system is one rife with inequality and arguably in violation of due process rights. Infamous-yet-rare cases of bail reform leading to crime notwithstanding, hundreds of thousands of innocent people are detained at any odd moment just because they can’t post bail. This is unacceptable.

Got thoughts on this piece or ideas for future ones? Feel free to comment below or shoot me a message here.

Other 101PC pieces about criminal justice & law:

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