Three myths about cash bail
Advocates of reducing jail populations should be pleased to see President Biden bring up the topic of cash bail again. It was promised as part of his campaign platform, but the president has been relatively silent on this issue—and criminal justice reform more broadly—since taking office. However, they may be surprised to see how and where it was brought up; namely, as part of a larger “National Strategy on Gender Equity and Equality” released by the White House on Wednesday of this week.
Framing the issue of cash bail and pretrial detention in such a blatant appeal to progressives is bound to stir up some beat-up-on-Biden blows from the right-wing media, which they have certainly delivered. His critics claim that ending cash bail, particularly amidst the news of an increase in violent crime over the past year, would be catastrophic for public safety.
For those with an objective eye on public policy as opposed to partisan politics, both sides’ stances call for a facepalm. As Josh Withrow (formerly of FreedomWorks) noted, “Both cash bail and pre-trial detention emerged as a compromise to resolve the tension between the Common Law presumption of innocence until proven guilty, and that of ensuring that the accused does show up to face their trial and judgment.”
But there is also a secondary function, Withrow notes, “which is to allow judges to make pre-trial release prohibitive for those accused whose past record or the heinous nature of their alleged offense renders them a likely menace to public safety.” Undoubtedly, both are essential functions of pretrial detention, yet neither requires a cash bail mechanism.
In light of this current debate of “fake news” versus “alternative facts,” here are a few myths and the accompanying reality of why pretrial reform, including eliminating cash bail, is a smart stance on crime, and not a hidden progressive agenda item to spike violence across our country, or a means by which to reduce (perceived or real) gender inequity.
Myth No. 1: Eliminating cash bail necessarily threatens public safety
Contrary to popular understanding, eliminating cash bail does not mean that people who are arrested cannot be held pretrial. In fact, as advocates of pretrial reform and reducing jail populations have noted, eliminating cash bail can actually lead to an increase in denial of release options altogether.
As R Street’s Steve Greenhut wrote in Reason, this was the case in Maryland: “Perhaps we didn’t consider the possibility that judges would routinely err on the side of incarceration. It makes sense. What judge (especially an elected one) wants to be the one that mistakenly released a violent criminal?”
Therefore, in eliminating cash bail, a careful line must be walked, that denial of release is reserved specifically for those violent offenders who pose a serious threat to public safety in the interim and not overused on others who may follow court orders on their own recognizance or be electronically monitored as a condition of release.
Further, those who don’t have the means to pay cash bail and end up in jail may lose their jobs. Understandably, research shows that unemployment can increase crime rates. So, inequitable cash bail, which is the case in many systems across the country, may actually make public safety worse, not better. Public safety and smart justice reform go hand in hand.
Myth No. 2: Without cash bail, even low-level offenders will have no incentive to show up to court
In states, cities and jurisdictions where cash bail has been entirely or all but entirely eliminated, abstention rates and rearrest rates are comparable or better for those released pretrial than before. For example, in Washington, D.C.— which reformed cash bail as early as the 1960s—94 percent of defendants are released pretrial and 91 percent appear for court. In New Jersey, since 2017, 95 percent of defendants were released pretrial and 89 percent appeared for court. Even Texas—a traditionally red state—has undertaken bail reform as a necessary measure in Harris County, which has the third-largest jail system in the country.
Myth No. 3: Gender equity is the reason we should eliminate cash bail
Working toward ending cash bail is a laudable goal, independent of racial or gender impact, because it protects the presumption of innocence until proven guilty while still allowing judges to impose pretrial detention for those who pose the greatest public safety risk.
Criminal justice reform has been a bipartisan accomplishment in many areas of the system, and should remain so. While the Biden administration is right to make ending cash bail a goal, it is unnecessary and perhaps counterproductive to tie it to the politically divisive issue of perceived gender equality or lack thereof. The policy merits of pretrial reform and eliminating cash bail stand strongly enough on their own to garner support across the political spectrum.
As the system currently stands, cash bail hurts low income families the most. It can jeopardize a person’s job, their home and their families. Further, Americans should question why so many individuals who are legally considered innocent until proven guilty are being robbed of their freedom. The ramifications of cash bail extend far beyond the individual and their immediate circles, by costing taxpayer dollars and harming public safety.
The Biden administration is right to take up reform of cash bail, but should reconsider making this useful goal part of the latest or trendiest political fight.