The American criminal legal system must seek to balance the administration of justice and individuals’ right to freedom. Its design came shortly after the Revolutionary War when the American people demanded strong guarantees that rights recently won from the British monarchy would remain protected from new government overreach. Special emphasis was placed on protections for those accused of crimes, enshrining within the Bill of Rights clear boundaries around criminal investigations, trials, and sentences. Thus, from its earliest history, the United States provided for a robust criminal legal system, with guaranteed safeguards and a presumption of innocence for all.
But the framers left behind a fatal design flaw: cash bail. Originating in Europe many centuries before the dawn of the Republic, the practice of money bail offered an alternative to vengeful blood feuds. Instead of picking up arms against those believed to have done harm, Anglo-Saxon law required a judge to determine the guilt of an accused party. In order for that person to await a court hearing on the matter from home, there was the option to put money on the line. In this historical context, cash bail served a distinct purpose: incentivizing return to court and avoiding unsanctioned bloodshed from the mere accusation of a crime.
In demanding government limitations in criminal matters, early Americans fought for a presumption of innocence that valued freedom and justice equally—going so far as to enshrine a ban against excessive bail in the Constitution. They allowed cash bail to live on, relying on the lingering assumption that putting money on the line will make people come back to court.
But the continued use of cash bail has corrupted the system from within—steering it far from a mere incentive to return for a trial. Between 1970 and 2011, the pretrial jail population increased by 433 percent, primarily due to judges relying more and more on cash bail and setting it at amounts people could not afford. On any given day, nearly half a million people languish in jail cells across the country waiting for their cases to move forward. People detained pretrial now make up more than two-thirds of America’s jail population. While theoretically presumed innocent under the law, freedom remains out of reach unless the accused has enough money to pay for it. But this isn’t the only cost of the cash bail system; we all pay more than we know—morally, socially, and economically.
Cash bail creates a two-tiered system of justice hiding in plain sight. It splits the criminal legal system into two separate and unequal processes: one for those who have money and one for those who do not. After courts set bail amounts, people who can afford that cost return home to their families, jobs, and lives where they can prepare their defense and ultimately recoup their payment after returning to court. People who cannot afford bail are left behind bars for the duration of their case—often lasting months and even years. During that time, people’s lives can fall apart; they can lose their jobs and homes, be separated from their children, and endure the daily trauma that jail brings. These pressures mount against them and ultimately impact case outcomes. Research shows that people detained pretrial are more likely to plead guilty after succumbing to these pressures, leading to higher conviction rates and harsher punishments than their released counterparts.
This two-tiered system not only impacts low-income people, but it also overburdens minorities and reinforces stark racial disparities behind bars. Data shows that judges often set higher rates and higher amounts of cash bail for people of color, particularly Black people, than white people. When comparing Black and white individuals in one study, Black defendants were 3.6 percent more likely to be assigned bail, and they received bail amounts that are, on average, $7,280 higher.
Cash bail’s resulting economic and racial inequalities undermine the entire criminal legal system. While those who experience its direct impact often express mistrust, most Americans fail to notice this erosion of core American values. However, when tragic stories break headline news—such as those involving Kalief Browder and Sandra Bland—people are outraged. These stories bring the harsh realities of bail corruption to light and inspire nationwide demands for policy change that better protects constitutional rights.
Still, the effects of cash bail reach further, costing our public health as well. While the health of those incarcerated is most directly threatened by higher rates of suicide, sexual assault, physical violence, and interrupted mental health care, local communities are also at risk. Jails are intricately linked to their surrounding communities through corrections staff, visitors, and people who have been released. As the COVID-19 pandemic recently demonstrated, the health of incarcerated people does not stay contained behind jail walls. Frequent, short-term admissions to overfilled facilities where social distancing is impossible facilitated the spread of COVID-19. A study in Illinois, for example, suggests that by April 2020, 15.7 percent of documented COVID-19 cases in the state were related to people cycling through the Cook County jail.
The economic consequences of cash bail devastate not only accused individuals but also their loved ones. Once cash bail is set, people who can scrape together the amount make the difficult decision of whether to put critical resources on the line, sometimes prioritizing their freedom over other necessary living expenses. This financial cost is often distributed beyond the individual, as parents, siblings, friends, partners, and larger networks chip in everything they can—disrupting the economic stability of everyone involved.
Not everyone can raise the funds necessary to secure their release. This is unsurprising considering the median bail amount set by courts in 2015 for people facing a felony accusation was $10,000, while the median annual income for a person in pretrial detention that year was $15,109. The $2 billion bail bond industry predatorily targets this population, seeking to extract money via non-refundable fees from those with the fewest resources. As a result, low-income communities permanently lose access to critical economic resources—even when charges are dropped or no evidence of wrongdoing is found.
When people with cash bail conditions can neither afford to pay that amount nor the bail bondsman’s fee, remaining in jail or caving to plea deals that offer time served or probation from home are the only options. And yet, even pretrial detention has associated costs. While incarcerated, people merely accused of crimes experience an immediate income loss and long-term consequences on future employment. A Philadelphia study found that people incarcerated pretrial earn $1,104 less in the four years following the resolution of their case than those who were released while their case was pending.
Impacted people don’t bear these costs alone. Taxpayers spend $14 billion each year to incarcerate legally innocent people. When factoring in the impact of pretrial detention on families, communities, and society, the true economic cost of this crisis has been estimated to approach $140 billion annually.
With cash bail costing Americans so much while undermining the legal system’s designs to protect individual freedom, we must find an alternative. Fortunately, there is evidence that cash bail is not necessary. The Bail Project has supported over 25,000 people in making 92 percent of their court appearances. This national nonprofit provides free bail assistance and community-based pretrial support to low-income and indigent people every year, laying waste to the idea that cash bail is necessary for the criminal legal system to operate. Because its clients have no financial obligation to The Bail Project or the courts, this high percentage shows that the vast majority of people return to court without the burden of cash bail. The Bail Project offers strong evidence that people simply need reminders of upcoming hearings, help with transportation and other common logistical challenges, and support navigating voluntary community-based social services—none of which costs individuals, American values, or taxpayers as much as cash bail.
Solutions are clear: Americans can both strengthen the justice system and avoid the costly consequences of current law by (1) requiring that judges make decisions about pretrial release and detention based on evidence and due process rather than money as a proxy for who goes home; (2) ensuring that pretrial detention is the rare, limited exception, as the U.S. Supreme Court has emphasized; and (3) investing in solutions that address people’s basic needs as they return to their communities while their cases are pending.
Certainly, reports of rising national crime rates require careful scrutiny of reforms that could combat or exacerbate the problem. Some politicians and pundits warn against embracing bail reform, arguing that policies that have reduced or ended cash bail practices cause increases in crime. But there is no evidence linking bail reforms—which have been in place for years in many localities—to any recent crime increases. In fact, the majority of cities that have seen a rise in crime have not eliminated cash bail. Moreover, their arguments ignore experts who have pointed to a “perfect storm” of nationwide factors impacting crime, including pandemic-induced social anxiety and economic collapse.
In fact, cash bail practices resulting in more pretrial incarceration may actually increase crime rates. Research shows that jailing people while they await trial results in a consistent “criminogenic effect” of pretrial detention, meaning that people are more likely to be rearrested after staying locked behind bars pretrial than similarly situated individuals who were able to return home. It makes sense: pretrial detention has a deeply destabilizing impact on people’s lives. Thus, reducing incarceration—especially when people are still presumed innocent—can benefit public safety while also freeing up taxpayer dollars to be directed to more effective crime controls, such as social services that address the root causes of crime.
The use of cash bail is unconscionable, is thoroughly un-American, and considers people guilty until proven wealthy. It has corrupted our criminal legal system, and its consequences impact us all. We must return to historic protections of individuals facing mere accusations by ending this practice and supporting people from within their communities. After all, freedom should be free.
