09/17/2019
The State of Bail
No Simple Solution to Reform
Almost two-thirds of the approximately 730,000 people incarcerated in U.S. jails on any given day have not been convicted of a crime.1 Many simply can’t afford to pay their money bail—even when set at relatively modest amounts—while for others the bail amount is set intentionally beyond reach so they remain in jail awaiting trial.2
This pretrial decision—whether someone is held in jail or released before trial—has significant consequences for people’s lives and the outcomes of their criminal cases.3 Yet judges continue to set money bail in amounts that people cannot readily pay, which effectively results in pretrial detention. This is despite the fact that most people released before trial present little risk to public safety and return to court on their own.4 Public sentiment supports a move away from using money bail: according to a 2018 survey jointly sponsored by Pretrial Justice Institute and Charles Koch Institute, 57 percent of Americans believe people should not be incarcerated solely because they cannot afford money bail.5
In August, California became the first state to fully eliminate money bail, building on precedent set by jurisdictions such as Washington, DC, and New Jersey.6 Yet many organizations, including those who were originally champions of California’s bail reform legislation, rescinded their support amidst concerns that the new law relied too heavily on risk assessments, opened the door to excessive pretrial monitoring and onerous conditions of release, and might even lead to greater overall pretrial detention.7
2018 also saw robust debate about the potential of such pretrial risk assessment tools to further embed racial bias in an already-biased justice system.8 Over 100 prominent civil rights, racial justice, data science, and legal services organizations signed a statement released by the Leadership Conference for Civil and Human Rights cautioning against the use of pretrial risk assessment instruments entirely.9 On the other hand, pretrial scholars noted the potential for pretrial risk assessment tools, if used carefully, to limit pretrial detention and openly capture instances of bias and unfettered discretion by judges and other court system actors.10
Another growing concern was that “mass surveillance” will supplant mass incarceration as an unwelcome consequence of bail reform.11 Even as jurisdictions across the country rely less on money bail or eliminate it entirely for some offenses, many have instead increased their use of mandatory pretrial conditions that resemble the onerous mandates of probation or parole, despite the fact that people released pretrial have not been convicted of a crime.12 The costs of these conditions—such as drug tests or GPS ankle monitors—are frequently borne by people as a condition of their release.13
In 2018, activists, advocates, and formerly-incarcerated leaders were center stage in the movement for bail reform, lending their voices to prosecutors’ races, legislative campaigns, community bail funds, and “bail outs” nationwide.14
