Have you or someone you know ever struggled to pay cash bail after an arrest? Does it seem fair that some defendants can pay for their pretrial release while others must stay in jail? There is a growing recognition that the traditional cash bail system in the United States is broken. It disproportionately impacts low-income and minority defendants and perpetuates inequities in the justice system. But reform is possible. Jurisdictions across the country are exploring alternatives to bail or monetary bail that aim to reduce pretrial detention and close demographic disparities, all while maintaining public safety. In this article, we will examine problems with the current bail system and highlight some promising replacements being tested and implemented.
What’s Wrong with Cash Bail?
The most glaring issue with traditional cash bail is the financial burden it places on defendants. Judges often set bail amounts with little consideration of an individual’s ability to pay. Even relatively low sums like $500 can be impossible for those living paycheck to paycheck. For defendants who cannot afford their assigned bail, the only option is to stay in jail until their court date arrives. In 2015, approximately 450,000 people in the U.S. were held in jail pretrial because they could not pay bail—many losing jobs, housing, and even custody of children while detained.
Cash bail also fuels the for-profit bail bond industry. When someone can’t cover their full bail amount upfront, they can pay a nonrefundable 10% fee to a bondsman or bonding company near you to cover the remaining cost. The bail bondsman markets aggressively to desperate defendants and their families, profiting off a system that ensnares the most vulnerable and financially insecure.
Finally, cash bail perpetuates inequities that plague the criminal justice system. Defendants who are low-income and belong to racial minorities are at a disadvantage when it comes to affording bail and are more likely to be held in detention before their trial. This leads to cascading adverse effects, including a greater likelihood of conviction, harsher sentences, and increased recidivism rates.
Reform Efforts Gain Momentum
In response to the apparent shortcomings of cash bail, reform efforts have accelerated across the country in recent years. Some jurisdictions are implementing common sense limits on the use of monetary bail. Judges are being encouraged to consider unsecured bond options that don’t require payment upfront. Data-driven risk assessment tools are being tested to recommend release or detention based on risk level rather than ability to pay. Increased funding for pretrial services provides supervision, reminders about court dates, and other support to defendants released with no financial conditions.
High-profile examples demonstrate the potential for successful bail reform. New Jersey essentially eliminated cash bail in 2017. Washington, D.C., ended its use decades ago. After implementing changes, both jurisdictions saw significant declines in pretrial detention without any increase in crime rates. New York City recently overhauled its bail system as well, resulting in an 18% drop in its jail population over five years.
Exploring the Alternatives
While specifics vary, bail reform generally expands options beyond traditional cash bail to promote pretrial release. Some alternatives showing promise include:
Unsecured Bonds – The defendant promises to pay the bond amount if they miss court dates, but no upfront payment is required. Unsecured bonds have proven highly effective at motivating defendants to appear in court.
Risk Assessment Tools – Data-based tools help judges determine whether defendants pose a flight or public safety risk. This allows detention decisions to be based on risk, not finances. Concerns remain about demographic biases in underlying data.
Pretrial Supervision – Instead of jail or bail, defendants receive supervision and services from pretrial officers, like court date reminders and electronic monitoring for higher-risk defendants. Studies show pretrial supervision can help ensure public safety and court appearances.
Citations or Summons – For low-level offenses, citations to appear in court or summons for booking after release can avoid unnecessary detention of defendants who pose a minimal risk if released.
Diversion Programs – Social services, substance abuse treatment, and other diversion programs address root causes and prevent continued system involvement for eligible defendants.
The Benefits of Bail Reform
Transitioning from cash bail to alternatives like those above carries many potential benefits for jurisdictions willing to undertake reforms:
- Lower jail populations – Pretrial detainees make up a disproportionate share of jail inmates. Bail reform can significantly reduce pretrial detention if financial conditions are not barriers to release.
- Reduce racial disparities – By basing pretrial decisions on risk instead of wealth, bail reform helps close demographic gaps in detention rates. In New Jersey, the pretrial jail population dropped by 20% overall and by 31% for Black defendants after reform.
- Improve public safety – Critics’ worries notwithstanding, there has been no uptick in crime in locales with substantial data following the implementation of bail reform. Appropriate risk-based detention and supervision help maintain community well-being.
- Save defendants’ money – Those who would have otherwise paid a bonding company or bondsman near you can avoid fees averaging $720 million per year nationwide. Even refundable bail payments are lost if appropriated as fines.
Next Steps in Bail Reform
The shortcomings of cash bail have become impossible to ignore. Promising alternatives now exist to reduce reliance on monetary conditions for pretrial release. But how can your local community join the bail reform movement? Get informed on the options, identify allies, and urge leaders to evaluate current bail practices compared to more just alternatives. Speak out against for-profit bail exploitation. Support officials willing to pilot and fund reform programs. The ideal of “equal justice under law” demands we move beyond bail.
What steps can you and your community take to reform cash bail? The traditional system has caused enough harm, but we now know there are feasible, ethical options. Progress won’t come quickly, but finding the courage to act despite opposition can set changes in motion that will lead to greater justice for all.
