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United States / Criminal Justice

Can’t Afford Bail: Fixing Pretrial Release


Most people sitting in local jails have not been convicted of a crime, and some of them never will be. Nationally, nearly 500,000 people are imprisoned while they await trial, according to a 2014 study from the International Centre of Prison Studies. This phenomenon is fairly new. Data from the Bureau of Justice shows that the population of unconvicted inmates accounted for ninety-five percent of the population growth in local jails between 2000 and 2015.

Locking up individuals accused of violent crimes makes sense from a public safety standpoint, but pretrial detention does not serve that purpose. About seventy-five percent of people locked up pretrial have been charged with property crimes, drug violations, or other non-violent acts. Furthermore, a study from the Laura and John Arnold Foundation found that nearly half of high-risk defendants—the individuals deemed most likely to be dangerous or not to show up in court—were released before trial.

The reason for these imbalances in pretrial detention is closely tied to bail, the primary mechanism that determines who is released and who stays locked up.

Typically, bail is an amount of money that people pay to the court to secure their release, which serves as an incentive to guarantee their appearance in court. If they show up in court, they get the money back; if they fail to do so, the court keeps the bail and can issue a warrant for their arrest. People who are released on bail must comply with certain conditions, such as drug or alcohol testing, remaining within their state of residence, refraining from contact with the victim of the crime, and not breaking other laws.

The problem for many defendants lies in how bail is set. Judges typically set bail based on the severity of the crime, although to expedite the process, many jurisdictions have specified bail amounts for common misdemeanors. Recently, courts have begun using complicated algorithms to determine bail, which use factors such as a defendant’s age and criminal history as proxies for estimating their likelihood of committing another crime. While these computer programs have been picked up in major jurisdictions across the country within the past year, they have also been criticized for predicting that black defendants are more likely to reoffend.

Whether bail is set by a judge or by a computer, one factor that is rarely taken into account is a defendant’s ability to pay. As a result, poor defendants accused of low-level crimes are often imprisoned pretrial due to their inability to meet a relatively low bail. For example, an analysis of New York City jail data from 2013 found that forty-one percent of inmates who were detained pretrial had committed a misdemeanor violation and had a bail of less than $2,500.

Pretrial detention has serious consequences. People who are locked up for an extended period of time risk losing their jobs, housing, and custody of their children. Evidence also suggests that pretrial detention makes people more likely to commit another crime in the future. Another study from the Arnold Foundation found that low-risk defendants who were detained for between eight and fourteen days before trial were fifty-one percent more likely to commit another crime than low-risk defendants held for less than twenty-four hours.

Furthermore, pretrial detention poses serious costs to American taxpayers. A recent analysis by the Prison Policy Initiative suggested that the practice costs states and municipalities $13.6 billion each year.

In some cases, backlogs in the criminal justice system make pretrial detention last. In 2015, it was reported that 1,500 inmates at Rikers Island in New York had been imprisoned for over a year while awaiting trial.

Perhaps most troubling, pretrial detention incentivizes individuals to plead guilty to crimes they may not have committed in order to get out of jail. Since many misdemeanors are punishable only with parole or fines, court-appointed lawyers sometimes advise their clients who cannot afford bail to accept a plea bargain and secure their release. From a legal perspective, this may seem like a good choice for some defendants—a future criminal record may genuinely lead to better outcomes than prolonged pretrial detention. But there is something seriously wrong with the American justice system when innocent people believe that their best legal option involves admitting to a crime that they did not commit.

The effects of pretrial detention—on people, communities, and the American concept of justice—are concerning, but the availability of potential solutions provides some hope.

Washington, D.C. enacted bail reform in 1992, requiring judges to set affordable bail and implementing a risk assessment system that allows judges to release low-risk defendants without any bail at all. According to the district’s Pretrial Services Agency, eighty-eight percent of defendants are released without bail. In 2015, ninety-one percent remained arrest-free throughout their release, and ninety percent showed up for their court dates.

Those statistics are not perfect. For comparison, a 2007 Bureau of Justice Statistics report, which tracked defendants in the country’s seventy-five largest counties between 1990 and 2004, found that twenty-three percent of felony defendants did not show up for their court dates.

While no other jurisdiction has gone as far as the nation’s capital in facilitating pretrial release, some private endeavors have experienced similar results. The Bronx Freedom Fund—a New York nonprofit which opened in 2007, was shut down by the state in 2009, and reopened after legal changes in 2013—pays bail for some low-income New Yorkers who are facing misdemeanors. According to the organization’s data, ninety-six percent of defendants who are bailed out by the fund make all their court dates, and fifty-five percent see their charges dropped entirely. Similar bail fund endeavors have appeared in other American cities in recent years.

The success of organizations like the Bronx Freedom Fund and programs like pretrial release in Washington, D.C. call into question the purpose of bail in the criminal justice system. Bail is supposed to be an incentive for defendants to appear in court, but instead, it often keeps low-income people locked up, saddling them, their communities, and American taxpayers with unnecessary costs.

Some states seem to be taking notice. Last November, eighty-seven percent of New Mexico’s voters approved an amendment to the state constitution which stated that defendants could not be detained pretrial on the basis of their inability to make bail. While the amendment’s intentions were clear, its practical implementation is dubious, and many bail reform supporters remain skeptical of how effective it will be.

In January, New Jersey adopted bail reforms which aim to eliminate bail for misdemeanor crimes and detain only defendants who were considered a flight risk or a threat to public safety. The measures, which were approved by voters in 2014, have been praised by both the ACLU and Republican governor Chris Christie.

These recent cases show that reforming bail practices is not a partisan issue. Although national criminal justice reform seems unlikely under President Trump, state and local jurisdictions have the power to reduce the burden of bail for low-income defendants and improve access to pretrial release. Most of the nearly half a million people currently awaiting trial in local jails do not need to be there. Reform is long overdue—and definitely still worth it.