Steven D. Schwinn is a professor at the University of Illinois Chicago School of Law and amy be reached at [email protected].
You’re probably familiar with mass incarceration in the United States. The phrase refers to the extraordinary rate at which we imprison our population, and the shameful, disparate rates at which we imprison persons of color. The numbers are familiar, but nevertheless shocking. In all, we incarcerated about 1.8 million people in 2020 in state and federal prisons and local jails. (The number is higher if we count people detained other facilities.) That’s about 0.7 percent of our total population, or almost one in every 150 people. While the total number has dropped steadily since 2008, when we reached a peak of 2.3 million people, we continue to far outpace the rest of the world in incarcerating our population. We comfortably lead every other country in terms of both the sheer number of total prisoners and the rate of incarceration. While we make up less than 5 percent of the world’s total population, we incarcerate nearly 25 percent of the world’s total prison population. And our penchant for incarceration falls heaviest on persons of color and the poor. Most starkly, the imprisonment rate for black males in 2019 was 5.7 times the rate for white males, and the rate for black females was 1.7 times the rate for white females. Hispanics and Native Americans were also significantly overrepresented in the prison population. And our incarcerated population is disproportionately poor.
You’re probably familiar with mass incarceration, and even these appalling numbers. But here’s something you might not know: on any given day, nearly a half million incarcerated people have not been convicted of a crime. These individuals are detained pending their trial. Many of them are unable to secure their release not because they are guilty (remember, they haven’t yet been tried), not because they pose a flight risk (they don’t), and not because they pose a threat to their communities (they similarly don’t). Instead, they cannot secure their release only because they cannot afford it.
These individuals are victims of our system of cash bail. In a cash-bail system, the court permits an individual charged with a crime to go free pending their trial. In exchange, the court sets a cash amount, bail, that the person must pay to the court to ensure their appearance at trial. In this way, the cash bail operates as a kind of collateral: when the person appears, the court returns the money. If the person fails to appear, though, the court keeps it.
Most jurisdictions set a standard bail amount for any particular alleged crime. But judges often have wide discretion to vary that amount (or even waive bail entirely). In setting bail for a defendant, a judge might also look at the person’s prior criminal history, the likelihood that the person will not appear at trial (the flight risk), and the danger that person might pose to the community if they were released. In theory, more serious crimes, lengthier criminal histories, and greater flight and danger risks would result in higher bail. The higher bail, in turn, would create a greater incentive for the highest-risk individuals to actually return for their trials in recoup their money.
But in practice, the cash bail system has resulted in a variety of problems. Most obviously, it prevents the release of individuals who can’t afford to pay. And that’s no small matter. The median bail bond is $10,000, or about 8 months’ income for the typically detained person. If a person can’t raise that kind of money, they can only turn to a bail bond lender. A bail bond lender provides funds to cover a person’s bail. But the lender secures the amount with collateral (the person’s house or car, for example), which the person forfeits if they fail to appear for their court date. And bail bond lenders charge a fee, usually between 10 and 15 percent of the bail amount, which the person cannot recoup, even if they appear for trial.
As a result, many defendants remain in jail. This comes with its own problems. Many spend weeks, months, and even years in jail while awaiting trial. This detention is unpleasant, to say the very least, and can be downright dangerous and abusive. Moreover, even a day or two in jail (to say nothing of a week, month, or year) can cost a person their job, housing, and transportation; and it can impact their education or training. It can affect family obligations and health care. And it can result in psychological trauma and stigmatize the person in the community. Pretrial detention can effect a person’s livelihood, health, family
Perhaps less obviously, pretrial detention impacts the outcome of a person’s criminal case. That’s because a pretrial detainee is more likely to accept a prosecutor’s plea offer, including a lighter sentence, and plead guilty to a lesser crime without going to trial. (After counting time served in pretrial detention, a person might get out of jail sooner by pleading guilty than by remaining in detention pending trial. That’s a testament to the undue length of pretrial detention, not the lighter sentence that might accompany a plea deal.) Given prosecutors’ heavy caseloads and incentives for securing convictions, they already have strong reasons to seek plea arrangements. The perverse incentives on both sides mean that pretrial detention has profound impacts on the outcome of criminal cases.
Finally, pretrial detention through the bail bond system produces the same disparate effects as the larger problem of mass incarceration. In particular, pretrial detention disproportionately affects persons of color and the poor. It’s yet another way that our system locks up black and brown people and saddles them with the short- and long-term impediments of incarceration. And as to the poor, it effectively criminalizes poverty.
Against these weighty costs, our bail bond system provides no real benefits. It does not reduce flight or community threats. (Studies show that pretrial detainees do not pose the flight or violence risks that we so often use to justify bail for any particular individual, or our bail bond system as a whole.) And it serves no penal interest. (After all, pretrial detainees are by definition innocent. They’ve only been charged, not convicted.) In other words, there’s really no good reason for it.
All this is why the bail bond system has been subject to such searching critical treatment in recent years. Commentators and advocates have argued that the system violates constitutional equal protection, due process, and the Eighth Amendment prohibition on excessive bail, among other things, including international human rights. The system runs afoul of basic notions of fair play and equal justice, and violates these fundamental precepts of the rule of law.
Jurisdictions across the country are now rethinking their approaches to the bail bond system to better align with the rule of law. Many jurisdictions are looking to reform or replace their existing bail bond systems with more targeted approaches to achieve their objectives. For example, some are considering a presumption against pretrial detention, placing the burden on the prosecution to justify any bail based on the particular defendant, their alleged crime, their actual flight risk, and their actual danger to the community. Some are considering more effective ways to protect against flight, for example, by simply sending reminders to individuals about their court dates.
Just this year, Illinois became the first state to adopt statewide bail bond reform. In landmark criminal justice reform legislation, the state gradually eliminates the use of cash bail and ultimately ends it on January 1, 2023. In lieu of bail, a judge must impose the least restrictive conditions on a defendant that are necessary to ensure their appearance in court. Under the legislation, courts can also provide reminders of court dates and even transportation to court appearances.
Illinois may be the first state, but it certainly won’t be the last. As the state moves toward full implementation, and gathers data about the reforms’ effectiveness, other states and local jurisdictions will continue to replace, reform, or modify their bail bond systems to come in line with core rule-of-law principles.