Approximately 465,000 people in jails across the US have not yet been convicted of a crime, according to the Prison Policy Initiative. And many of them remain in jail for days, weeks, or even years simply because they cannot afford their bail.
In order to avoid spending long periods in jail — unable to go to school or earn income — many people plead guilty. And while they may get out of jail faster, they also go home with a criminal record. But even just a few days in pretrial detention can cost people their jobs and housing, and takes them away from their families and communities, which can have long-lasting effects.
Today, cash bail, initially intended to ensure that defendants appear for their court dates, is instead perpetuating poverty cycles in the United States, and further disenfranchising poor communities of color, who are arrested and incarcerated at disproportionate rates.
Still there are many misconceptions about what reforming the cash bail system would look like. Below, we clear some of those up.
MYTH 1: There's no need to reform the cash bail system because bail is set at fair and affordable amounts.
Kalief Browder was accused of stealing a backpack in 2010. He was arrested and his bail was set at $3,000, a sum he and his family could not afford. Browder, then 16, spent three years in jail on Rikers Island in New York City without ever being sentenced. He died by suicide in 2015 not long after finally returning home.
In 2017, a senior citizen in San Francisco, California, had his bail set at $350,000 for allegedly stealing a bottle of cologne and $5 from his neighbor. He remained in jail for more than 250 days before being convicted because he could not afford his bail.
Randall McCrary, a mentally ill man in Atlanta, Georgia, was arrested that same year for disorderly conduct and his bail was set at $500. Unable to afford that amount, McCrary languished in jail for over two-and-a-half months, during which time the government discontinued his disability support, the New York Times reported.
These stories are far from uncommon.
In 2015, the median annual income of a person in prison prior to being incarcerated was about $15,000, which reflects an even greater issue: Americans born into families living in poverty are more likely to be incarcerated.
Simply put: the American cash bail system makes it a crime to be poor.
MYTH 2: "Violent offenders" will be free to "roam the streets."
Cash bail has not been proven to keep communities safer; in fact, it may do the opposite.
More than a dozen prosecutors from around the country wrote to New York Governor Andrew Cuomo this March, urging the state to end cash bail. “Research shows that people who spend even a short period in jail, as opposed to being released pretrial, are more likely to commit a future crime,” the letter said.
“This makes sense. Jail is traumatizing. Jobs are lost. Families can’t pay rent. For reasons big and small, people who are away from their family, their job, and their community become more vulnerable and less stable. That makes all of us less safe.”
While eliminating the cash bail system would allow most people accused of a crime, though not yet found guilty, to be released until their trials, most reform proposals and bills do include safeguards.
On March 31, New York passed a bill eliminating the use of cash bail for most misdemeanors and non-violent crimes, which make up the majority of charges. But the bill also included measures that would enable better criminal discovery and speedy trials — such measures are an expansion of pretrial services that would help ensure both greater safety and fairness for all. These changes are scheduled to take effect in New York on Jan. 1, 2020.
Other states that have ended or are shifting away from the use of cash bail — including New Jersey, Kentucky, and Arizona — have replaced the system with various risk assessment tools. Judges can use this tool to decide whether to “remand” higher-risk defendants, meaning hold them in jail until they are arraigned, or release them with supervision. Defendants released under supervision are typically subject to requirements like GPS-monitoring ankle bracelets and drug tests until their hearing, but no bail.
However, these tools are not without flaws. While they rely on data to determine a defendant’s risk of skipping their court date and their “dangerousness,” critics of these tools, including the ACLU and NAACP, point out that they can produce racially discriminatory and gender biased results because they rely on flawed data.
For example, in Broward County, Florida, risk assessment algorithms were more likely to rank black defendants high risk than white defendants — not because the algorithm factors in race, but because of the deeply rooted bias and systemic inequality that leads people of color to be arrested at higher rates, the New York Times reports. And it’s this history of arrest, whether ultimately found guilty or not, that the algorithm considers.
Instead cash bail reform advocates emphasize the need to hold individual hearings to determine whether to release or remand those accused of violent crimes and to incorporate input from communities into the development of risk assessment tools.
Governor Cuomo’s current bail reform proposal moves away from the more controversial uses of risk assessment tools, toward establishing a more equitable and effective pretrial system, and has been praised by criminal justice advocacy groups like the Vera Institute.
MYTH 3: People are more likely to skip their court dates without bail.
Washington, DC, largely moved away from the cash bail system nearly three decades ago, and yet the overwhelming majority of defendants have shown up for their appointed court dates, the Washington Post reports.
The city released 94% of people arrested without bail in 2017 — and 88% of those people made every one of their court dates, DC Judge Truman Morrison told NPR. That’s likely because many people who miss their court dates in the first place aren’t “on the run,” according to the Appeal, a criminal justice-focused media outlet. More often, defendants who “fail to appear” at their hearings are unable to afford transportation, child care, or simply forgot.
MYTH 4: Crime rates will increase if cash bail is abolished.
Since eliminating its cash bail system in 2017, New Jersey has actually seen crime rates plummet. While experts can’t say for sure if the bail reform measure directly caused the decrease in crime, the data shows eliminating cash bail has not led to an increase in crime as some opponents of cash bail reform had predicted, WNYC reported.
MYTH 5: Eliminating cash bail will put crime victims in danger.
Critics of bail reform have said that overturning the system will particularly endanger victims of these alleged crimes; however, crime victim advocates have also joined the call for cash bail reform.
In New York, victim advocates actually participated in efforts to reform the system before the bill was passed in March, and supported the justice reform package put forward by the bill.
Additionally, crime victims in the US are more likely to come from low-income communities and be people of color — their communities are often the same communities that disproportionately feel the negative effects of the cash bail system. Pretrial detention and cash bail also place an incredible strain on the family members and loved ones of defendants, so reforming cash bail could actually have positive effects on these communities as a whole.
MYTH 6: Bail reform will be expensive and cost taxpayers large amounts of money.
While it’s true that cash bail reform won’t come cheap, if done well, it should save state and local governments money over time.
About $14 billion of taxpayer money goes toward supporting pretrial detention every year, the Pretrial Justice Institute reports.
Most reform proposals that advocate for ending cash bail also include proposed measures to establish better pretrial services and reduce pretrial detention. While increasing and improving pretrial services will cost money, such services are far less expensive than the cost of pretrial detention, according to the Harvard Law School’s Criminal Justice Policy Program.
In Los Angeles County, pretrial detention costs about the city about $177 a day per person, while releasing the defendant, even with conditions, costs $26, at most — meaning cities could save millions of dollars every year by eliminating the cash bail system.
City Controller Alan Butkovitz reported that Philadelphia could save over $75 million a year by reforming its cash bail system. Bail reform measures in Ohio could similarly save the state an estimated $67 million, the Washington Post reported.
What You Can Do
You can help advocate for cash bail reform by calling your state and local legislators to let them know you support reform measures and advocate for the elimination of discriminatory policies.
You can also help those in pretrial detention by donating to a bail fund. These funds are nonprofit organizations that help bail those who cannot afford their bail out of prison. Because bail money is typically returned to defendants after they meet court requirements, bail funds are able to use donated money over and over again to bail more people out jail. Find one in your state (or elsewhere) here.
How to Tune In
ACTIVATE: THE GLOBAL CITIZEN MOVEMENT is a six-part documentary series from National Geographic and Procter & Gamble, co-produced by Global Citizen and RadicalMedia. ACTIVATE raises awareness around extreme poverty, inequality, and sustainability issues to mobilize global citizens to take action and drive meaningful and lasting change. The series will premiere globally in fall 2019 on National Geographic in 172 countries and 43 languages. You can learn more here.