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July 14, 2022

Ending Overreliance on Pretrial Incarceration and Other Means-based Sanctions

The American Bar Association believes that money bail should only be used to secure a person’s appearance in court when it is the only means that will effectively do so.

Incarcerating people who pose no flight risk or danger to society simply because they are unable to pay money is an affront to the presumption of innocence at the cost of wages, employment, personal relationships, and enduring social stigma. Because socioeconomic status tends to fall along racial lines in the United States, money bail has had a disproportionate impact on Black, Indigenous, and people of color.

For similar reasons, the ABA opposes incarceration and other forms of nonmonetary punishment for the nonpayment of fees and fines. Such financial obligations should be reasonably tied to an assessment of a person’s actual ability to pay.

People of limited means also face increased incarceration when they are not represented by counsel when their liberty is at stake. The ABA believes that indigent defense systems should be resourced on par with the prosecution and that the right to counsel should attach beginning with bail hearings.

Federal Legislation

A number of bills were introduced in the 117th Congress on these issues. Some leading legislative proposals include:

  • The No Money Bail Act of 2021, H.R. 1249 by Rep. Lieu (D CA), would restrict the use of money bail in criminal cases and prohibit the use of money bail in federal criminal cases.
  • The Community First Pretrial Reform and Jail Decarceration Act, H.R. 5034 by Rep. Trone (D MD), would take several steps to reduce the number of persons incarcerated, the duration of sentences, and provide grants to states to eliminate or reduce the use of cash bail.
  • The Driving for Opportunity Act, S. 988, Sen. Coons (D DE), would authorize the Department of Justice to award grants to states that do not suspend, revoke, or refuse to renew a driver’s license based on a person’s failure to pay a civil or criminal fee or fine. Among other things, it would also cover the costs incurred by a state to reinstate such driver’s licenses and focus on support where public transportation options are limited; and
  • The State Justice Improvement Act, S. 3024 by Sen. Schatz (D HI) and H.R. 5646 by Rep. Nadler (D NY), would authorize the State Justice Institute to award grants to states to develop best practices and policies that avoid incarceration or arrest for individuals who fail to pay fees or fines without first conducting an ability-to-pay determination and establishing whether the failure to pay was intentional.
  • The FAMILIES Act, S. 2477 by Sen. Wyden (D OR) and H.R. 4709 by Rep. Jayapal (D WA), would divert certain parents and primary caregivers of minor children away from incarceration and into community supervision where the family is able to remain together. Among other things, the bill would restrict the ability of sentencing courts to also impose a fine on the parent or caregiver without first assessing the likely impact of the fine on the family and the ability to pay.
  • The EQUAL Defense Act, H.R. 1408 by Rep. Deutch (D FL), would, among other things, help ensure parity in funding between public defense and prosecution; improve training and data collection around specific concerns to public defenders; and increase individual awards under the federal John R. Justice Prosecutor and Defender Student Loan Repayment Program.

ABA Policy and Reports

The following ABA positions and reports are examples of ABA positions on these topics:

  • Supports Ten Guidelines on Court Fees and Fines, including that they be tied to one’s ability to pay; should not result in undue financial hardship; should never jeopardize one’s fundamental rights including the right to vote; and examples of responsible collection practices 2018AM114
  • Supports using the least restrictive means reasonably calculated to ensure a person’s presence at trial and that any secured bond be set at the lowest level necessary, based on a person’s actual ability to pay Standard 10-1.4; ABA Standards for Criminal Justice, Chapter on Pretrial Release
  • Supports a right to counsel for any proceeding, criminal or civil, where the loss of physical liberty is at stake 2018MY114
  • Supports the appointment of counsel beginning at bail hearings 1998AM112d
  • Supports necessary steps to ensure compliance with the Sixth Amendment guarantee of effective assistance of counsel, including but not limited to adequate funding for indigent defense 2005AM107

Sample of ABA Letters

117th Congress

116th Congress

115th Congress