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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.

  • Adureh Onyekwere
Last Updated: February 24, 2021
Published: December 10, 2019

The United States is one of the only coun­tries in the world with a cash bail system that is domin­ated by commer­cial bail bonds­men. This 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. In Febru­ary 2021, Illinois became the first state to end the prac­tice across the board. 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.

Else­where at the state level, New Jersey effect­ively elim­in­ated mandat­ory cash bail in 2017, and defend­ants 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 law elim­in­at­ing bail for those charged with certain misde­mean­ors, most nonvi­ol­ent felon­ies, and two felon­ies clas­si­fied as viol­ent took effect in 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.