Should we end cash bail?

To the Teacher:

In recent years, some cities and states have decided to experiment with reducing or eliminating cash bail. Cash bail is an amount of money, set by a court, that a person must deposit in order to leave jail after being arrested. The purpose of cash bail is to guarantee that the person will return for a court date and collect their bail deposit. However, reformers believe that cash bail is having unintended consequences: They charge that it is unfairly penalizing citizens who have limited resources, and greatly expanding the number of people being held in jail.

The United States has more people detained while awaiting trial than any other country in the world. Many people remain in detention simply because they cannot afford to bail themselves out. Some politicians on both sides of the political spectrum are now advocating for reducing the U.S.’s enormous prison populations. Criminal justice reform advocates say that eliminating or decreasing use of cash bail systems is one part of the solution.

This lesson is divided into two readings. The first reading explores the issue of cash bail and examines why some criminal justice reform advocates argue for ending it. The second reading discusses what has happened in cities and states that have ended cash bail. Questions for discussion follow each reading.



Reading 1:
Can Ending Cash Bail Lessen Injustice?

Cash bail is an amount of money, assigned by a court, that a person must deposit in order to leave jail after being arrested. The purpose of cash bail is to guarantee that the person will return for a court date and collect their bail deposit. 

While the effectiveness of cash bail is now under debate, it has long been a part of the U.S. criminal justice system. The Eighth Amendment to the Constitution, included in the Bill of Rights, mandates that a person’s bail cannot be set unreasonably high. Nevertheless, the United States has more people detained while awaiting trial than any other country in the world. In fact, seventy percent of people being held in local jails are being held pretrial—about 452,200 people. This means that they are in jail before they have been convicted of a crime – at a point when they are legally presumed innocent.

Many of these people remain in detention simply because they cannot afford to pay to bail themselves out. Politicians on both sides of the political spectrum advocate for decreasing prison populations. Criminal justice reform advocates note that eliminating or decreasing use of cash bail systems is one way to do that.

One conservative public policy thinktank, the Heritage Foundation, opposes ending cash bail. Heritage legal commentators John-Michael Seibler and Jason Snead argue that the Eighth Amendment does not mean “that bail must be affordable, or even available, to all defendants.” Just because bail might be out of reach for many, Seibler and Snead contend, does not mean that it is unconstitutional: “In the United States, defendants have a right to reasonable bail, but Congress and state legislatures can define which crimes are, and are not, considered bailable… [And] in certain limited circumstances judges can order pre-trial detention in the name of public safety.” Opponents of ending cash bail also point out that some of the people who are arrested and charged with crimes (though not convicted, and presumed innocent) are potentially dangerous individuals.

Advocates for ending cash bail, however, argue that ending or reducing cash bail is not only the ethical thing to do, it will save cities and states significant amounts of money. If a defendant cannot afford to pay cash for bail, that person remains in a city or county jail until their trial, costing taxpayers money. In October 2017, the Philadelphia Controller’s office published a report on cash bail, with the recommendation that the city stop using cash bail, mainly on the grounds of saving money. The report explains:

The City of Philadelphia, by eliminating the cash bail system, could save the city over $75 million annually and provide a viable alternative to jail for a significant number of those arrested in Philadelphia in a given year…. Of the nearly 6,700 men and women still incarcerated in Philadelphia, three in every ten are held pre-trial because they cannot afford the cash bail. Of those, one in three are held on less than $5,000, of which the City will ultimately retain only $1,500. According to Pew Charitable Trust’s Philadelphia Research Initiative, more than half remain for longer than 30 days. Sometimes exceeding 180 days, the direct costs of incarceration can exceed $20,700 for a single bed…..

Major cities across the U.S. are looking at innovative ways to manage pretrial defendants, balancing the need to ensure justice is served and maintaining public safety, while evaluating the long-term impacts of incarceration and correction of the offender. Research has found current systems can cause more damage on the incarcerated and their families than benefit, whereas alternatives may be just as effective, yet provide better futures for those in the criminal justice system.

Studies show that being held in jail is not only costly for local taxpayers, it can begin a cascade of destabilizing events for the person who is detained, including often losing a job or housing or even custody of children. New Yorker staff writer Margaret Talbot reported in an August 25, 2015, article on how even a short stay in jail can upend a person’s life:

There’s a study that quantifies some of the harm of keeping low-risk offenders in jail. Three criminal-justice researchers—Christopher Lowenkamp, Marie VanNostrand, and Alexander Holsinger—with backing from the Arnold Foundation, were able to track more than a hundred and fifty-three thousand arrests and bookings into Kentucky jails, between 2009 and 2010. They published their results in November, 2013, but the study hasn’t gotten the attention it deserves. The researchers found that the longer low-risk defendants were held in jail the more likely they were to engage in criminal activity. “When held 2–3 days, low-risk defendants are almost 40% more likely to commit new crimes before trial than equivalent defendants held no more than 24 hours,” they wrote. Low-risk defendants were even more likely to be re-arrested when they were held eight to fourteen days, and this remained true two years after the conclusion of the original case….

How could it be that as few as two additional days in jail could do such damage? It might be that when a low-risk person is crammed in with a more dangerous one—the turnstile jumper with the armed robber—proximity exerts a bad influence on the former without improving the latter. But the researchers say that the real problem is that jail destabilizes lives that are often, and almost by definition, already unstable. It tends to quickly undermine the three mainstays of steady employment, housing, and family attachments.

[A] professor at the University of Missouri, Kansas City, told me: “These are people who might well be working, but in a low-level job, let’s say in the fast-food industry, where they are very easy to replace. If you or I didn’t show up to work for three days without an explanation, it would certainly create problems but we probably wouldn’t get fired.” If you miss three days as a fast-food worker, you’re fired. Low-risk offenders are also more likely to have precarious living situations. “They might be flopping on their sister’s couch, or their friend’s. Their name’s not on the lease. Maybe they’re one argument away from being kicked out on the street,” Holsinger said. Or maybe they’re in a drug-rehab program where not showing up one night means they lose their bed. If they are parents, like one of the subjects of a Times Magazine article this month about the pitfalls of cash bail, they may lose their children while they are behind bars and be consumed with worry about who is taking care of them.

Without support systems in any or all of these categories, people are more likely to get into trouble again.

Many criminal justice reform advocates also argue that cash bail can lead to a higher rate of false guilty pleas. They argue that people who are being held before trial are more likely to take a plea deal, even if they are innocent, just so that they can get out of jail and piece their life back together. In an August 16, 2015, article for the New York Times Magazine on cash bail in New York City jails, journalist Nick Pinto wrote:

Across the criminal-justice system, bail acts as a tool of compulsion, forcing people who would not otherwise plead guilty to do so. A 2012 report by the New York City Criminal Justice Agency, based on 10 years’ worth of criminal statistics, bears this out. In non-felony cases in which defendants were not detained before their trials, either because no bail was set or because they were able to pay it, only half were eventually convicted. When defendants were locked up until their cases were resolved, the conviction rate jumped to 92 percent… ‘‘The data suggest that detention itself creates enough pressure to increase guilty pleas,’’ the report concluded.

While some argue that cash bail is serving its stated purpose of ensuring that people show up to trial, reformers believe it is also causing many harms, creating more problems than it solves.


For Discussion:

  1. How much of the material in this reading was new to you, and how much was already familiar? Do you have any questions about what you read?
  2. According to the reading, what does the Constitution say about bail? How have some legal scholars interpreted the Constitution’s Eighth Amendment?
  3. What are some the arguments for ending cash bail? Which argument for ending cash bail do you find most compelling? Why? Which did you find most surprising? Which arguments are most compelling for keeping cash bail? Why?
  4. How can even a short stay in jail end up disrupting someone’s life? Do you think this is a convincing reason to lessen the use of cash bail? Why, or why not?



Reading 2:
What Happens Without Cash Bail?

In recent years, some cities and states have decided to experiment with reducing or eliminating cash bail. New Jersey moved to eliminate the use of cash bail in the early 1990s, and New Jersey made a similar move in 2017. Along with the other states, jurisdictions, and cities that have reduced cash bail, they have faced challenges in phasing out such a long-standing practice.

On a typical day, in Washington, DC, courts will release about 90% of the people arrested within 24 hours, all without bail. In a July 4, 2016, article, Washington Post reporter Ann E. Marimow described how the DC system functions so differently than many others in the United States:

At the D.C. jail on 19th Street SE, no one is locked up on a criminal charge because of an inability to pay.

“We’ve proven it can work without money, but the whole country continues as if in a trance to do what we know does not work,” said D.C. Superior Court Judge Truman Morrison. The new way of thinking he promotes tracks the federal system, which bars judges from setting financial barriers to keep someone locked up….

 “There is no evidence you need money to get people back to court,” said Morrison, a judge since 1979. “It’s irrational, ineffective, unsafe and profoundly unfair.”

One argument from opponents of ending cash bail is that some of those people who are arrested and charged with crimes are potentially dangerous individuals. In two high-profile cases in Washington, DC, individuals released from jail without bail went on to commit violent crimes. In the first case, a man was able to bypass court-ordered monitoring device attached to his prosthetic leg, which he left at home; he then fatally shot someone. In the second case, a young man released on bail while facing misdemeanor charges fatally stabbed a man two days later.

New Jersey passed legislation in January 2017 that has dramatically reduced its use of cash bail. A woman whose son was killed by a defendant who was free while awaiting trial has filed a lawsuit challenging the constitutionality of the state’s new law.

Those in favor of eliminating cash bail offer several responses to such incidents. The first is that the problem of accused individuals committing other crimes before trial is not a product of the bail system; it results from the fact that we presume individuals to be innocent until proven guilty. Even if the reform laws had not been passed, the criminals in question could still have obtained freedom before trial—simply by posting bail.

The second response is that new systems do take an individual's likelihood to reoffend into consideration before releasing them from pre-trial detention. New Jersey now uses a computer program with a risk assessment algorithm to determine if someone who has been arrested will be released with an ankle monitor, kept in jail until trial, or assigned cash bail, based on their likelihood to reoffend or to leave the area. Those found to be high risk are not released.

The third response is that the track record has shown that the elimination of cash bail is working in the vast majority of cases. Only a very small number of cases result in re-offences. Reporter Ann Marimow continues in her Washington Post article about DC’s system: “In the past five years, about 90 percent of defendants released were not arrested again before their cases were resolved, according to data collected by the D.C. Pretrial Services Agency. Of the roughly 10 percent who did get in trouble again, the vast majority are not rearrested for violent crimes.”

For Discussion:

  1. How much of the material in this reading was new to you, and how much was already familiar? Do you have any questions about what you read?
  2. What have been some of the results, positive and negative, of eliminating or dramatically reducing the use of cash bail in New Jersey and Washington, DC?
  3. Based on these results, do you believe that cash bail should be eliminated in other areas? Why or why not?
  4. Some believe that eliminating cash bail would put dangerous individuals out on the streets. What are some the responses to this position? What do you think of these arguments?


-- Research assistance provided by Ryan Leitner