Tools for Safe and Smart Bail System Changes
The United States has seen a surge in action to preserve two competing basic rights: personal liberty and public safety. At the same time, fears regarding public safety and the government’s obligation to use their inherent “police power” to uphold it are sweeping the nation. Because of the necessary balance between these two protections, the determination of pretrial release has become one of the country’s most hotly contested issues.
Of course, personal liberty is not absolute. The government can only infringe on personal freedom if there is a compelling interest—such as maintaining public safety—that justifies denying someone’s liberty. This highlights the primary concerns when determining pretrial release or detention.
Bail is the mechanism that grants pretrial release to a person accused of a crime. The United States affords several rights, including the prohibition of excessive bail and the right to be presumed innocent until proven guilty, to keep the government from unnecessarily denying someone’s freedom before they are convicted. Similarly, there are often state-level limits and protections around the use of bail, such as limited use and application of preventive detention. Regardless, approximately 80 percent of jailed individuals have not been convicted of a crime. Of those, 60 percent are detained simply because they could not afford bail.
Used widely for centuries, cash bail requires an individual to pay a sum of money to the court in exchange for release. It was originally implemented to ensure people would return to court to face charges—if the individual appeared at all of their court dates, the court would return their money. Public safety risk was not introduced as a consideration until the 1970s and 1980s.
In recent decades, rather than paying the court in full, people often pay a nonrefundable 10 to 15 percent of the cash bail amount to a for-profit bail bondsman who pledges to return the individual to court. Bail bondsmen get to keep these nonrefundable payments as profit and are rarely required to pay the remaining bail amount to the court, even if the individual does not appear. The result is a booming industry for bail bondsmen with little evidence of reduction in flight or safety risk.
In fact, the effectiveness of cash bail has been in question for years. Researchers have long warned that cash bail creates a two-class system that bases someone’s release on their ability to pay rather than their risk of absconding or risk to society. As a result, wealthy individuals accused of violent crimes may be released while minor-offense, low-risk defendants remain in jail because they cannot afford bail. This can lead to a cycle of poverty and imprisonment that further strains jail resources, entitlement programs and community safety.
Besides burdening the accused, cash bail costs taxpayers approximately 13.6 billion dollars every year. Unnecessary jail time can lead to lost wages, loss of employment and disruption of family life, which then impacts the economy as businesses lose workers and people turn to unemployment, welfare and other government programs. Add to that the significant cost of housing, feeding and supervising jailed individuals.
These are some pretty steep costs and consequences, considering cash bail does not guarantee public safety.
While changes that limit the use of cash bail can create a more effective and efficient pretrial system, policymakers must concurrently consider research-backed tools and procedures to avoid unintended consequences that compromise safety.
This series will explore several concepts lawmakers should evaluate when working to reduce the use of cash bail. Within each post, we will explain a smart solution to accompany bail reform and the problem it is trying to address, examine research on effectiveness of the solution, and identify any challenges or concerns. Readers will learn more about: