The United States is notorious for having the highest incarceration rates in the world—810 federal, state, and local prisoners for every 100,000 adults, according to one recent study. And one big reason it’s so high is that the US also has by far the largest population of defendants who can’t make bail and are waiting for their trial in jail, even though they haven’t yet been convicted of anything.
This heavy reliance on cash bail—a bond that allows you to go free before your trial, and that will be returned only if you show up—is almost unheard of outside the United States. Most other countries rely instead on various forms of community supervision and monitoring.
It’s hardly ever the defendant who is paying the bail-bond premium. It’s friends and family, primarily women.
Social scientists have spent decades studying the devastating effects of high US incarceration rates on individuals and communities. But in recent years some of them have also begun to focus on the equally devastating effects of the US cash bail system. Their findings, as well as prospects for reform, are documented in the 2022 Annual Review of Criminology by sociologist Joshua Page of the University of Minnesota and criminologist Christine Scott-Hayward of California State University, Long Beach.
Page spoke about what he, Scott-Hayward, and other scholars are finding out about bail.
Why did the United States shift toward the heavy use of cash bail?
Nobody’s really studied it, to be honest. One speculation is that during the 18th and 19th centuries, the western expansion separated people from their families and friends, who would have acted as surety to get them to trial. So courts turned to cash bail in lieu of that.
But once cash bail did get started, and grew so large, it definitely got embedded in laws, policing practices and judges’ decision-making—and provided an opportunity for entrepreneurs looking to find business. In the early 1900s, for example, two brothers in San Francisco started the first bail bond company, which grew into an industry that is unique to the United States and one other country, the Philippines.
How does that industry work?
The courts set financial bail, and the defendants—the vast majority of whom are low-income and can’t afford the full amount—will call a bail bond company. The company, if it agrees to take on the case, will then typically charge the defendant 10 percent of the bond. In the case of a $10,000 bail, they will charge a $1,000 premium, which the company will keep. The company will then post the bail bond on behalf of the defendant. If the defendant does not show up for court, the company can try to get that money back from the defendant and whoever has cosigned for the bond.
What effect does bail have on defendants and their communities?
The consequences are significant. In the vast majority of cases, for example, it’s not the defendant who is paying the bail-bond premium. The defendant is in jail. It’s friends and family, primarily women: mothers, sisters, grandmothers, wives, girlfriends. And these are often low-income women of color, given the disproportionate representation of people of color in jails, so paying several hundred or several thousand dollars is a big financial hit. This leads to harsh tradeoffs: paying bail or paying for rent and other necessities. People often have to take out short-term, high-risk loans. So high bail drains resources from families and whole communities.
And if your family and friends can’t raise the premium, do you stay in jail?
You do. And the research shows that the legal outcomes for people who are detained pretrial are considerably more negative that for those who are released pretrial, even controlling for things like the type of charge and other characteristics. One of the biggest reasons is that the vast majority of these defendants take a plea bargain rather than going to trial, because they want to get the hell out of jail. It’s a terrible, terrible place to be—chaotic, stressful, incredibly boring, sometimes violent, sometimes with bad medical care.
And of course, staying in jail means they risk losing employment and housing, not to mention the relationship strain of not being available for childcare and the other obligations they have in the community. But then when they do plea-bargain, people who are locked up tend to get longer prison sentences than those who aren’t because they posted bail.
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What’s the alternative, though? Is society supposed to just let people loose, hope they show up for court, and don’t rob or kill somebody in the meantime?
The way the question is framed suggests that the choice is cash bail or nothing. And it assumes that defendants are going to be let out regardless of the danger they pose, with nobody doing anything to watch them.
That’s not actually how it works. There will always be bail, if we just think of it as a mechanism for getting people out pretrial; the choice is between cash bail and some alternative system. Defendants might be put on electronic monitoring, for example. In some states, community organizations get involved to make sure the defendants go to court. Some other states have pretrial services agencies that supervise people on release. It operates like probation: The agency makes sure that people look for work, that they attend programs for drug or alcohol treatment, or anger management—things that the judge can consider when sentencing, but that you can’t do if you’re in jail.
Some states also have what’s called the 10 percent system, where a judge sets the bail, the defendant deposits 10 percent of that with the court—not a bail bondsman—and then gets that money back if they return to court, without ever having to put up the whole amount. And still other states have a system where a big bail is set, but the defendant doesn’t have to pay anything unless they don’t show up for trial.
New Jersey went even further in 2017, when it implemented one of the most comprehensive packages of bail reforms in the country. First of all, they’ve mostly changed the way they handle nonviolent crimes. Let’s say you get pulled over and have weed in your car. Rather than arrest you, which would require that the police take you to jail and make you subject to bail in the first place, they would give you a summons with a court date. It’s like when you get a speeding ticket.
And if you don’t show up?
Then they’ll issue an arrest warrant.
A second thing New Jersey did is change the way courts use their risk-assessment tools. These are basically algorithms that use statistical data to predict whether somebody is a flight risk or public-safety risk. If defendants are deemed a low risk, then they’re automatically released on their own recognizance. If they’re deemed to be a medium or high risk, though, they are not automatically detained like they would be in other states. Instead, there is a court hearing in which the defendant is represented by counsel, and the prosecution has to convince the judge with actual evidence that the person is a flight risk or a threat to public safety.
These reforms amounted to a complete overhaul of bail in New Jersey, and made it so that they hardly ever use financial bail. Then, in 2021, Illinois implemented many of these same procedural reforms, but went even further and completely got rid of cash bail—the first state in the country to do that.
Do these reforms mean that fewer defendants show up for court in these states? And do more of them commit violent crimes once they’re out?
Comparisons between states find that cash bail is not any more effective than non-cash bail systems at getting defendants to show up for court. Most people just want to get their case over with, so the rates of turning up are very high, upwards of 90 percent, regardless of the bail system.
The state-to-state data on public safety is comparable also: Pretrial crime isn’t any higher in New Jersey than in states that have a fully cash bail system. Arguably, in fact, cash bail can be harmful to public safety, since it means that people’s ability to get out of jail ultimately depends on their financial situation regardless of how dangerous they are. And there may not be any supervision requirements. Certainly, the bail bond companies only care about getting people to court; they’re not actually monitoring anybody.
Yet opponents have successfully used the risk-to-public-safety argument to roll back bail reform in several states, including New York and California. And this opposition isn’t just coming from the bail-bond industry, which you’d expect, but from law enforcement organizations and district attorneys. Why?
Because the only surefire way to prevent pretrial crimes is to automatically lock up everybody who’s arrested. And since we don’t do that, then—with or without cash bail—there are going to be cases in which individuals get out and commit crimes, even heinous crimes. Then those cases become part of the media narratives, as well as campaigns against reform. Or they become fodder in larger political battles, used to portray reformers as soft on crime.
These anecdotes are hard to argue against, especially if it’s a violent crime, because you have to put abstract facts—what the research says—against the story of a real person who has suffered real harm.
Is there still a widespread push for bail reform in the United States?
Yes. It’s difficult to say how big the movement is, since most of the organizations and individuals are involved in other reforms, too. But racial and economic justice organizations like Color of Change, NAACP and Black Lives Matter, as well as civil liberties organizations like the ACLU, have taken up bail as an important reform issue in a way that perhaps they didn’t in the past. There’s even been some movement for bail reform from conservatives who consider it an injustice to punish people before they are found guilty.
What I can say is that there are lots and lots of people in lots and lots of places pushing for bail reform. How successful they’ll be, I don’t know.
M. Mitchell Waldrop is a freelance writer based in Washington, DC.
Lead image: Thomas Hawk / Flickr
Reprinted with permission from Knowable Magazine.