Margo McGehee, Associate Member, University of Cincinnati Law Review
A cornerstone of the American criminal justice system is that those accused of crimes are innocent until proven guilty. However, three out of five people in U.S. jails today have not been convicted of a crime, amounting to nearly half a million people behind bars who are still presumed innocent. Today, most jurisdictions operate on a cash bail system where the court requires a defendant to pay a sum of money up front to secure their release from detention. The court’s increased use of cash bail and defendants’ inability to pay has led in part to the staggering growth of pretrial detentions.
Bail reform movements are not new in the U.S. but have gained steam in recent years as the cash bail system’s inequalities and injustices have become more apparent. In February, Illinois succeeded in ending its cash bail system, reopening the debate of what role, if any, cash bail should play in the criminal justice system. Bail reform advocates argue that the cash bail system disproportionately affects low-income people and women, leads to unjust outcomes and post-detention disparities for defendants, and has little effect on whether a defendant will return for court appearances or reoffend pretrial. Part II of this article will overview the cash bail system and introduce recent bail reform measures. Part III will discuss the cash bail system’s negative implications and why the United States should end the practice. Part IV offers alternatives to the cash bail system.
A. How Bail Works
After a law enforcement officer arrests an individual, the defendant ordinarily stands before a judge within 24 hours. Judges then have the discretion to decide whether to release the defendant with an order to return for all court appearances, detain the defendant in jail until a trial verdict or plea deal is reached, or choose the middle path of setting bail. By selecting this middle path, Judges allow the defendant to remain free for their case’s duration but use the bail money as collateral to ensure that the defendant satisfies the court’s requirements, such as returning for all court appearances. The defendant is typically required to produce the bail amount immediately, and if the defendant meets the court’s requirements, the court returns the bail money to the defendant at the end of the case.
The Eighth Amendment to the U.S. Constitution protects against excessive bail. However, even reasonable bail amounts may be too high for a low-income defendant to pay. Those who cannot afford bail must either remain in jail for the duration of their case or solicit the help of a commercial bondsman. Commercial bondsmen agree to be responsible for the defendant’s bail obligation in exchange for a nonrefundable “bond premium” that is typically 10 to 15 percent of the bond amount. The bondsman keeps this premium regardless of the outcome of the case to compensate for risk.
B. Recent Bail Reform Measures
In February 2021, Illinois became the first state to categorically end cash bail practice through the Illinois Pre-Trial Fairness Act. The Act is a comprehensive collection of criminal justice reforms sponsored by a caucus of Black Illinois lawmakers galvanized in part by George Floyd’s death and the summer 2020 protest movement. This Act takes substantial steps toward dismantling systemic racism in the criminal justice system and prevents judges from setting any kind of bail for an individual charged with a crime. Under the new system, judges must consider evidence surrounding the defendant and circumstances to determine what level of risk, if any, the defendant poses to the community and whether the defendant is likely to return for court appearances. The judge must then determine whether to keep the defendant in jail or release them without bail. The new system will not go into effect until January 2023, giving Illinois court officials time to prepare for and implement the new system.
In January of 2020, the Supreme Court of Ohio proposed changes to Criminal Rule 46, including reform measures targeting Ohio’s cash bail system, which went into effect on July 1, 2020. The amendments require courts to release defendants “on the least restrictive conditions” that ensure the defendant appears in court and the community will be safe. Additionally, the amendments require that any financial conditions placed on a defendant’s release be of the type and amount that are least costly to the defendant while still ensuring that court and community interests are met. Significantly, the Supreme Court justices excluded language from the amendments that would have required courts to utilize “risk assessment” tools—formulas or algorithms synthesizing historical crime data to predict a defendant’s likelihood of returning for court appearances or reoffending pretrial—as these tools have been closely tied to racial disparities in the criminal justice system.
Numerous other states have taken steps to reform the cash bail system, though not all have succeeded. California unsuccessfully sought to end cash bail statewide during the 2020 general election, sending bail reform advocates back to the drawing board.
The most vocal criticism of cash bail is that it disproportionately affects low-income people and leads to unneeded imprisonment. Courts typically set cash bail without considering a defendant’s ability to pay, meaning that even relatively low bail amounts could leave defendants in jail due to their inability to pay. A 2016 analysis of New York City’s use of cash bail found that even when courts set bail at $500 or less, 40 percent of defendants remained in jail until the end of their case. This example illustrates the impact disposable income has on an individual’s freedom—$500 is a nominal amount for many but may be an unattainable amount for low-income individuals who have no choice but to stay in detention until the resolution of their case.
Further, low-income defendants have fewer resources to handle the socioeconomic shocks of pretrial detention. These individuals are more likely to have jobs paid at an hourly rate, meaning that detention for any amount of time could lead to lost income or even job loss. This also leads to the risk of long-term unemployment or underemployment after release as the stigma of detention, along with lost education or training opportunities, significantly limits job options and lifetime earnings. The socioeconomic impact of pretrial detention may also affect a detainee’s family and children, contributing to the cycle of poverty. Research shows that parents’ imprisonment leads to negative outcomes for their children, including an increased propensity for violence, decreased school attendance, and increased anxiety and depression.
Pretrial detention also increases the likelihood that a defendant facing minor charges will accept a plea deal regardless of their actual guilt or innocence. For misdemeanor charges, defendants can often plead guilty, and the court will release them from detention based on time served. This option is disproportionately exercised by low-income individuals, especially women, as it is often the fastest way to be released from jail and get back to work, children, and other obligations. However, guilty pleas perpetuate many of these socioeconomic concerns as an individual’s criminal record may detrimentally impact current or future job prospects and custody disputes.
Studies also show that people who spend time in pretrial detention receive harsher sentences than those who spend the pretrial period outside of detention. A study conducted by the New York City Criminal Justice Agency showed that non-felony conviction rates increased from 50 percent to 92 percent for those detained pretrial. The study also showed that the rate jumped from 59 percent to 85 percent for felony cases. One possible explanation for this disparity is that pretrial release allows defendants to show the court that they can “behave responsibly” by working, supporting their families, and contributing positively to their community, which can result in more lenient outcomes. Individuals detained pretrial are not afforded this opportunity.
Additionally, pretrial detention increases the likelihood of being charged with a new crime in the future, further perpetuating a cycle of crime and poverty for low-income individuals. A Kentucky study found that individuals held in detention for their entire pretrial period were 1.3 times more likely to be arrested on new charges in the future than individuals released at some point pending trial. Pretrial detention disrupts and damages interpersonal relationships and community ties, which help protect against future crime and increase the risk of job loss and unemployment.
Finally, after considering the detrimental impact pretrial detention has on individuals charged with even minor misdemeanors, studies have shown no statistically significant difference in court appearance rates or public safety outcomes between people who paid money for their release and similarly situated individuals who did not. Without clear evidence that cash bail is necessary to keep communities safe and ensure that defendants appear for court dates, it is unclear what purpose the cash bail system serves.
IV. Alternative to Cash Bail
If the cash bail system’s purpose is to ensure that criminal defendants show up for their court appearances and keep communities safe from potentially dangerous individuals, then courts can realize this purpose in alternative ways. One potential alternative is for courts to better utilize supervised release programs and other pretrial supervision services. In March of 2016, New York City implemented a citywide supervised release program resembling parole. In lieu of detaining an individual who cannot afford bail, judges may let an individual leave detention on the condition that they meet consistently with a social worker and maintain regular phone contact with that person until their case is resolved. New Jersey implemented a similar program in 2017 and saw a 20 percent reduction in its jail population. 95 percent of defendants in New Jersey were released pretrial, and 89 percent appeared for their trial date, further illustrating that cash bail is not necessary to ensure that defendants appear for court dates.
Another option is for courts to order defendants accused of drug and substance abuse-related crimes to enroll in drug treatment programs. Detainment does little to address the underlying causes of the defendant’s alleged criminal behavior and only threatens to exacerbate those underlying issues for defendants facing substance abuse problems. Treatment programs offer better resources than individuals would receive in jail and keep the community safe from further substance-related criminal activity.
Courts could also implement unsecured bond systems. Defendants would not be required to pay bond money up front, but would be expected to pay the money at a later date if they fail to meet any of the court’s stipulations, such as failure to appear for all court hearings. This system helps solve the problems of the current cash bail system as anyone, regardless of income level, would have a viable option to leave jail, and it further incentivizes individuals to appear for court and disincentivizes pretrial criminal activity.
As jurisdictions and courts decide how to confront the issue of bail reform, they must be wary of utilizing risk assessment technology as an alternative, as this technology opens a Pandora’s box of additional issues. On the surface, prediction tools are seemingly useful to help courts discern which criminal defendants are low risk offenders for release. However, this technology relies on prior criminal history and regional crime statistics riddled with racial and socioeconomic biases, leading to unjust outcomes. Ohio specifically declined to include the use of risk assessment technology in the state’s bail reform amendments, and other states should refrain from implementing similar programs, as well.
When asked about his thoughts on cash bail reform and pretrial detention, the former chief judge of New York State’s highest court stated, “[w]hether you’re in jail for three days, three weeks, three months or three years, it’s an accelerator of human misery. . . . [y]ou come out a changed human being.” Inability to afford even the most reasonable bail should not alone subject an individual to the detrimental impacts of detention. The cash bail system disproportionately affects low-income individuals. It exacerbates challenges they and their families already face, despite the fact that an individual’s ability to front bail money has little impact on whether the individual is a risk to the community or the court. States should follow Illinois’ example and end the practice of cash bail in favor of more effective and equitable systems.
 Lea Hunter, What You Need To Know About Ending Cash Bail, Center for American Progress (Mar. 16, 2020), https://www.americanprogress.org/issues/criminal-justice/reports/2020/03/16/481543/ending-cash-bail/.
 Leon Digard and Elizabeth Swavola, Justice Denied: The Harmful and Lasting Effects of Pretrial Detention, Vera Institute of Justice (Apr. 2019).
 Maria Cramer, Illinois Becomes First State to Eliminate Cash Bail, N.Y. Times (Feb. 23, 2021), https://www.nytimes.com/2021/02/23/us/illinois-cash-bail-pritzker.html.
 Alex Traub, How Does Bail Work, and Why Do People Want to Get Rid of It?, N.Y. Times (Jan. 11, 2019), https://www.nytimes.com/2019/01/11/nyregion/how-does-bail-work-and-why-do-people-want-to-get-rid-of-it.html.
 U.S. Const. amend. VIII.
 Adureh Onyekwere, How Cash Bail Works, Brennan Center (Feb. 24, 2021), https://www.brennancenter.org/our-work/research-reports/how-cash-bail-works.
 Traub, supra note 5.
 Cheryl Corley, Illinois Becomes 1st State To Eliminate Cash Bail, NPR (Feb. 22, 2021), https://www.npr.org/2021/02/22/970378490/illinois-becomes-first-state-to-eliminate-cash-bail.
 Cramer, supra note 4.
 Balancing Bail Reform, Ohio State Bar Association (Mar. 24, 2020) https://www.ohiobar.org/member-tools-benefits/practice-resources/practice-library-search/practice-library/2020OL/balancing-bail-reform-criminal-rule-46/.
 Id.; Hunter, supra note 1.
 Jason Pohl, California’s far-left activists shocked they beat Prop. 25. What’s the future of bail now?, The Sacramento Bee (Nov. 6, 2020), https://www.sacbee.com/news/politics-government/election/article246968937.html.
 Digard and Swavola, supra note 3, at 6.
 Id. at 7.
 The Socioeconomic Impact of Pretrial Detention: A Global Campaign for Pretrial Justice Report, Open Society Justice Initiative (Feb. 2011), https://www.justiceinitiative.org/publications/socioeconomic-impact-pretrial-detention.
 Id. at 22.
 Id. at 25.
 Digard and Swavola, supra note 3, at 5.
 Udi Ofer, We Can’t End Mass Incarceration Without Ending Money Bail, ACLU (Dec. 11, 2017), https://www.aclu.org/blog/smart-justice/we-cant-end-mass-incarceration-without-ending-money-bail.
 Digard and Swavola, supra note 3, at 5.
 Id. at 6.
 Id. at 2.
 Traub, supra note 5.
 Hunter, supra note 1.
 Digard and Swavola, supra note 3, at 8.
 Bernard E. Harcourt, Risk as a Proxy for Race, University of Chicago Public Law & Legal Theory Working Paper 323 (2010).
 Traub, supra note 5.