Pay or Stay: Issues with the Bail System

by Jonah Levine


What you can do:

  1. Donate to a bail fund. These funds assist those without the financial ability to post bail. An index of community bail funds can be found here: https://www.communityjusticeexchange.org/nbfn-directory
  2. Write your congressman and ask them to support anti-bail legislation, such as the “No Money Bail Act,” which was brought to Congress by Bernie Sanders.
  3. Engage with The Bail Project, which has established itself in many cities across the nation. https://bailproject.org/

Presumption of innocence is the cornerstone of our criminal justice system. Despite its supposed significance, this principle is not extended to the nearly half a million Americans detained in jails for crimes to which they are not yet proven guilty. Jails were established to detain those who pose a significant risk of fleeing town or harming their communities before trial. Today, many remain in jail for neither of these risks, but merely because they cannot afford to post bail. On account of the bail system, individuals are locked up for nothing more than a lack of personal wealth.

Under the discretion of their jurisdiction, an arrested individual will either be detained until trial, allowed to return home, or detained for a portion of time before trial. One’s pretrial release is often predicated on their payment of bail, which is returned to the individual when they appear in court for trial. Cash bail essentially acts as a form of collateral. The theory behind it asserts that a person will be  more likely to appear for trial when their own money is on the line [1]. It may make intuitive sense, but this idea bears little semblance to reality. No evidence exists suggesting that one’s financial ability to pay bail influences the chance they appear in court. The bail system’s only proven function is to treat arrested individuals differently based on wealth.

Once targeted by this discriminatory practice, those lacking the ability to post bail may see their financial instability worsen while detained. Just a few days in jail can spell the loss of wages, or worse, jobs. In some tragic cases detention can result in the loss of custody of one’s children. The longer someone remains in jail, the more unstable their socioeconomic situation may be when they reenter society. Often, the only other alternative to bail or time in jail is a plea bargain. Facing either hefty bail or the destabilizing consequences of detainment, even innocent individuals are sometimes compelled to accept a plea bargain. Courthouses are shy to admit that they rely on these plea bargains to stay afloat. Only a fraction of defendants pursue a full trial; courthouses would be easily overburdened if everyone exercised this right. [2] Without the coercive incentive of bail on plea bargains, jurisdictions would have trouble churning through their massive caseloads.

Atop the financial hardship that individuals face upon release from jail, even the jail itself may drain one’s resources. From toothbrushes to toilet paper, detained persons are billed for many of the essential goods and services they use while inside. A quick phone call to a loved one can cost as much as $20. The longer they remain in jail, the longer their bill grows. One jail in Northwest Ohio charged $68.76 per day to cover the cost of their own incarceration—such a rate amounts to over $25,000 per year. This “pay to stay” logic was adopted in jurisdictions across the country over the past few decades to cover the costs of our burgeoning incarcerated population. One 2005 survey found that 90% of jails charged their inmates fees. [3] For those who already lack the financial resources to pay bail, such fees can be devastating. Between the price of bail, jail fees, and lost wages, pretrial practices carry off-the-record consequences potentially worse than a pending sentence.

In recent decades, our centuries-old bail system has expanded at an alarming rate. In 1990, most felony defendants were allowed to go home before trial with no financial strings attached. In 2009, 61% of felony defendants were required to post bail. During the same period, the average bail for felonies increased 43%. [1] Thus, bail became simultaneously more common and harder to pay. Bail data for more recent years, as well as data for misdemeanors, is less established; however, the overall trend of bail is reflected in the rising numbers of individuals detained pretrial. Between 1970 and 2015, the use of pretrial detention increased 433%; 3 out of every 5 people in jails today have not been convicted of a crime. [2] Jails were established to detain only the few individuals who posed a serious risk of harming their communities or fleeing before trial, but today’s massive jail population has surely surpassed this slim demographic.

Not only have jails expanded beyond their purpose, but they might not even be that effective at accomplishing their original intention. Some evidence has indicated that detainment increases the likelihood of the very events it seeks to prevent. One study of Kentucky’s jails between 2009 and 2010 found that individuals spending just a few days in jail had an increased likelihood of missing their court date and committing new criminal activity before their trial. [3] These trends were especially evident for misdemeanors. Considering the limited purpose and wide-reaching harm of mass detention, it is time we rethink the methods keeping unconvicted individuals in jails. We can start with eliminating the bail system.

It cannot be emphasized enough that despite its accelerated growth, there is simply no evidence to argue that the bail system impacts the likelihood that individuals will appear in court. Eliminating this practice might seem radical, but several areas have taken this step and been quite successful with it. In 2016, New Jersey passed a legislation package that virtually eliminated cash bail. Just one year later, they saw a 20% reduction in their jail population. [4] Washington D.C. likewise started taking steps to dismantle their cash bail system in the 1960s, eliminating it entirely in the early 1990s. Nowadays, 94% of defendants are allowed home before trial, and 89% return successfully on their court date. [2] It should also be noted that while bail has little influence on the likelihood that a defendant appears in court, there are other, less invasive methods that actually achieve this goal. One study of Coconino, California found that when defendants were spoken to directly over the phone after missing one court date, they were 21% more likely to show up to their next court date. [1] To think that something as benign as a phone call might be more effective than something as intrusive as bail demonstrates our need to rethink the way the criminal justice system interacts with defendants.

Some have argued that rather than eliminate the bail system, we should reform it. One idea gaining traction proposes that we restructure the methods by which bail amounts are assigned. Many jurisdictions determine bail sums based on the severity of the crime committed, and some suggest that bail sums be assigned using actuarial algorithms that determine each defendant’s real risk of missing court, as well as their ability to pay. [1] This may be a somewhat fairer method of assigning bail, but any reform misses the greater issue with our current pretrial practices. A criminal justice system that drains legally innocent individuals of their finances during detainment is bent. A system that leverages such consequences to encourage people to plead guilty before trial is broken. A system that allows one person to buy their freedom while keeping another detained for lacking the wherewithal to pay is downright inexcusable.  We must rescue the many unconvicted individuals stuck in jail who cannot afford to pay their way out. We must eliminate the bail system.


Works Cited

[1] https://www.vera.org/publications/incarcerations-front-door-the-misuse-of-jails-in-america

[2] https://www.nytimes.com/2015/08/16/magazine/the-bail-trap.html

[3] https://www.brennancenter.org/our-work/research-reports/charging-inmates-perpetuates-mass-incarceration 

[4] https://www.americanprogress.org/issues/criminal-justice/reports/2020/03/16/481543/ending-cash-bail/

[5] https://nicic.gov/hidden-costs-pretrial-detention

[6] https://www.mdrc.org/publication/evaluation-pretrial-justice-system-reforms-use-public-safety-assessment-0

Photo credit: https://ideas.ted.com/how-the-bail-system-in-the-us-became-such-a-mess-and-how-it-can-be-fixed/