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Explainer

How Cash Bail Works

The cash bail system is unfair to low-income people and people of color, but there are ways to fix it.

Published: December 10, 2019

The United States is one of the only countries in the world that requires cash bail for anyone who has been arrested and wants to stay out of jail while awaiting trial. The bail system discriminates against people of color and the poor, and it is in dire need of reform. Some states and cities are making progress, but much more work is needed to bring fairness to this corner of the criminal justice system.

Pretrial detainees make up more than 70 percent of the U.S. jail population — approximately 536,000 people. Many of them are only there because they can’t afford bail.

What is cash bail?

Cash bail is used as a guarantee that a defendant will return for a trial or hearings. The money is returned after they make all necessary court appearances, otherwise the bail is forfeited to the government.

In most places, a standard bail amount is set for any alleged offense, but judges typically have broad discretion to raise or lower it. The judge could also waive bail entirely and release a defendant on their “own recognizance,” which means that a person promises that they will show up when they’re supposed to.

What if a person can’t afford to pay bail?

If a defendant is unable to pay his or her court-determined bail amount, the person can try to use a private bail bond company. These companies agree to be responsible for the defendant’s bail obligation in exchange for a nonrefundable fee, called a bond premium, that is generally 10 to 15 percent of the bail amount. The remainder is secured via collateral — a car, house, jewelry, etc. If a defendant misses a court appearance and the bond company pays, the company will use the collateral to recoup the full amount.

What are the effects of waiting in jail for trial?

Defendants who don’t have the funds to pay a bond premium are forced to await trial in jail. Pretrial detention has dramatically negative effects on the outcome of a defendant’s case: those who are held pretrial are four times more likely to be sentenced to prison than defendants released prior to trial. Pretrial detainees are also likely to make hurried decisions to plead guilty to a lower charge to spend less time behind bars rather than chancing a higher charge and longer sentence at trial.

In addition, the psychological trauma of unnecessary pretrial detention can be devastating. Kalief Browder was a 16-year-old accused of stealing a backpack in New York City. Bail was set at $3,000, and his family couldn’t pay it. Browder languished in jail for three years awaiting trial, spending much of the time in solitary confinement. Eventually, prosecutors dropped the charges against him, but the damage was done — Browder committed suicide soon after his release.

Who is hurt most by cash bail?

Bail practices are frequently discriminatory, with Black and Latino men assessed higher bail amounts than white men for similar crimes by 35 and 19 percent on average, respectively. These discriminatory practices are clearly seen in Maryland, where Black defendants were charged over double the amount of bond premiums than all other races put together, even though Blacks comprise only 30 percent of Maryland’s population.

How can the cash bail system be reformed?

Reforms have been proposed to curb the use of cash bail or eliminate it altogether. Initiatives in cities like Philadelphia have ended the use of cash bail for low-level offenders. The move allowed authorities to release over 1,700 people who were awaiting trial; an assessment found no negative impact on recidivism or courtroom appearance rates. In fact, the city’s First Judicial District reported record-high appearance rates.

New York City instituted an alternative-to-bail project in 2016, called the Supervised Release Program. It gives judges the discretion to release defendants unable to afford bail, under the condition that they periodically meet with social workers and complete regular phone check-ins. By March 2019, the program had delivered an 88 percent court appearance outcome, comparable to results of a defendant being released on their own recognizance or bail.

At the state level, New Jersey effectively eliminated mandatory cash bail in 2017, and defendents now have the presumption of release. The reforms determine whether someone has to pay cash bail by calculating the risk of recidivism based on a computerized algorithm. Although algorithms can be problematic because they can serve to reinforce the many biases that are present in society in general and the criminal justice system in particular, this program has been a success. Since its application, the number of people held in pretrial detention decreased by 67 percent.

In New York, a new law eliminating bail for those charged with certain misdemeanors, most nonviolent felonies, and two felonies classified as violent will take effect in January 2020. Under this law, judges must either release defendants on their own recognizance or provide a non-monetary avenue to seek to ensure their court appearance. Judicial discretion in setting bail is maintained for those charged with almost all violent felonies and certain nonviolent felonies such as sex offenses and witness tampering.

The examples from these places are promising, and many more state and local governments should follow their lead. Until then, unfair cash bail practices will endure nationwide, resulting in dramatically different consequences based on race or wealth.