Kelly Straub, MPA, Staff Writer, Brief Policy Perspectives

On average, 730,000 people are held in jail each day, a number that tripled in the past 25
years. Many have not been convicted of a crime, but are awaiting trial, sentencing, or arraignment. Nearly 40% of the current jail population is being held because they cannot afford the bail necessary for release from pre-trial detention. Often, defendants must wait several months between being charged with a crime and their trial. For minor offenses, this pre-trial detention period may be longer than the eventual sentence. In addition to the disproportionate impact these policies have on low income individuals, this process costs taxpayers millions of dollars a year.

Excessive Bail Shall Not Be Required, Nor Excessive Fines Imposed

Imposing bail exacerbates financial hardships for low income Americans and their families. Since they are unable to work while in pre-trial detention, many lose their jobs. Additionally, many jurisdictions jail individuals who fail to pay municipal fines such as parking tickets and court-ordered child support, regardless of financial circumstances. This is despite the likelihood that the fines are far less than the amount the jurisdiction is spending to jail the defendant. Depending on the state, judges are granted broad discretion in setting the cost of bail and determining who is eligible. This leads to a significant disparity in bail practices within a given jurisdiction. This can also lead to racial disparities in determining bail eligibility, since it is individual judges who determine the amount set for bail, assuming they decide bail should be granted.

Additionally, many jails in the U.S. are overcrowded, with poor conditions and additional cost burdens and liabilities. The American government spends around $22 billion a year on jails at an average cost of $31,286 per year per inmate. States pay 57% of the costs, while local governments pay 32% and the Federal government pays the remaining 11%. This becomes especially problematic when jurisdictions assess fines and fees on jailed populations to make up for budgetary shortfalls. This can create a long cycle of detention and fines when the original charge may have been something as simple as a parking ticket.

Innocent Until Proven Guilty

Individuals held on bail have not yet been convicted of any crime. In a 2017 study, the State of California determined that 20% of individuals held in pre-trail detention had their charges dismissed. Additionally, cash bail creates pressure for low income Americans to accept plea deals in return for staying out of jail, even if they did not commit the crime with which they are charged, for fear of losing their jobs or being unable to take care of their families while incarcerated.

Fortunately, many states and the federal government are cognizant of the problems with the current bail system. Since 2010, the U.S. government effectively ceased issuing bail for federal crimes. If a defendant is deemed dangerous or a flight risk, they are held without bail. Otherwise, defendants are released or sentenced to house arrest with ankle bracelets. New Jersey is the first state to eliminate the practice of bail completely, with generally positive results. The number of individuals held in jails has decreased as much as 20% in some jurisdictions, and there does not seem to be a significant increase in crimes committed for those released from pretrial detention. However, like any new program, it is not without problems. Certain aspects of the pretrial release program are underfunded, especially those areas addressing mental health and addiction concerns. Additionally, the program lacks the staff it needs to continuously monitor certain defendants, or track defendants down if they go missing, a function that once fell on commercial bounty hunters.

No Person Shall Be Deprived of Life, Liberty, or Property Without Due Process of Law

New technology offers several alternatives to replace or supplement the cash bail system, though some of these breakthroughs should be taken with a grain of salt. Several private companies developed algorithmic questionnaires that those charged with crimes may take to determine their likelihood of showing up for their trial and recidivism. New Jersey is using one of these programs, with the caveat that judges still make the final determination. However, most of these algorithms are still under development and may be vulnerable to racial bias. Race is not a direct factor in determining pretrial release eligibility, but some factors, such as housing instability and unemployment, disproportionately affect minorities. Fundamentally, these algorithms are built on a body of historical criminal justice statistics that are racially biased, and therefore the outputs of these algorithms are likely biased as well, even if the designers try to control for racism in their models.

The use of ankle bracelets and other forms of monitoring as an alternative to bail has also expanding. However, this technology raises concerns about invasion of privacy and heavy-handed surveillance. Ankle and wrist bracelets with continuous GPS tracking have become widespread for both those pending trials and released on parole for both those pending trials and released on parole. There are also check-in programs that use location-enabled smart phones, but these are not yet commonly used. These options offer a plausible alternative to pre-trial detention for those deemed a flight risk, but who are not otherwise violent, and are more cost-effective than jail. Importantly, low income individuals can continue to work and take care of their families.

In summary, cash bail is unnecessarily punitive toward low income individuals, especially under the principle of innocent until proven guilty. Finding the balance between strict interpretation of legal statutes and discretion in individual cases will remain a challenge, especially as technology rapidly advances faster than laws. Although abolishing the bail system brings its own set of difficulties and limitations, it is a better and more equitable alternative than the current status quo for thousands of Americans.