About 2.3 million people in the United States are incarcerated — and more than half a million of them remain innocent of their alleged crime until proven guilty, yet they remain in jail because they cannot afford to make bail.

Abolishing bail is critical to tackling the issues of poverty and discrimination in the US, as the cash bail system hits black and brown and poor white communities the hardest.

Millions & Billions

Pretrial detention of those presumed innocent costs local governments nationwide: $13.6 billion each year. (PPI)

The United States spends $38 million a day to detain people pretrial. That cost is borne by taxpayers and could be redirected into education, housing, and economic development. (data for progress)

Wrongful Incentives

Prosecutors and judges encourage wrongful conviction plea bargains to quicken the pace of cases processed by the court and to move faster through the overcrowded schedule of court cases.

There are strong incentives for defendants, who are often overpowered by the apparatus of the carceral state, to plead guilty to crimes even when they are innocent. (Brookings)

Defendants who are held in custody who cannot afford bail, or who do not qualify for release on their own recognizance may get out of jail immediately following the judge's acceptance of a plea. (wamu)

Population

74% of the people in U.S. city and county jails — nearly a half million individuals on any given day—are awaiting trial. (PPI)

Expanding Jails

People who have not been found guilty of the charges against them account for 95% of all jail population growth between 2000-2014. (PJI)

Arbitrary Bail

Often, “bond schedules” set arbitrary bail amounts that are unaffordable to most people. In one California study, local bond schedule amounts for public intoxication ranged from $75 to $10,000 (PJI)

Pandemic Detention & Spreading

Pretrial detention during a pandemic could be a death sentence, yet prosecutors continue to use it as a tool for extracting plea deals. The criminal justice system has create a humanitarian crisis in city and county jails.

Exposing people to potential infection because they cannot afford a cash bond threatens the safety of the community by exacerbating a growing pandemic. Going forward, judges should consider that factor release on personal recognizance all people charged with misdemeanors and low-level felonies. Judges should also reconsider custody status for anyone whose incarceration will make them vulnerable to infection. (bailproject)

Systemic Racism

Black Americans are about 50% more likely to be detained pretrial than white defendants for the same alleged crime (PPI)

Black Americans were less likely to be released on their own recognizance than white defendants. (justicepolicy)

Black Americans ages 18 through 29 received significantly higher bail amounts than all other types of defendants.(justicepolicy)

Nearly 70 percent of those held in pretrial detention are accused of nonviolent crimes.

State by state

Washington D.C. eliminated cash bail in 1992. 94% of defendants were released pretrial without cash bail and 88 percent showed up for all of their court dates in 2017. (Marshall)

Only a few states have ever reformed their cash bail system (including Washington DC, Illinois, Vermont, Georgia, California, New York, New Jersey, and Alaska) and now New York is rolling backwards on its progress. (Marshall)

Unjust detention on the rise

In 1966 Congress enacted the first major substantive change in federal bail law since 1789. The Bail Reform Act of 1966 declared that the sole purpose of bail laws must be to assure the appearance of the defendant and adopted a policy that no one, “regardless of their financial status,” may “needlessly be detained pending their appearance.” The law, however, did not permit judges to consider a defendant’s prospective dangerousness to the community in deciding whether to detain someone.

In 1984, Congress rectified its earlier oversight with a new Bail Reform Act that enabled judges to detain the few “but identifiable particularly dangerous defendants for whom no stringent release conditions or likelihood of re-arrest would “reasonably assure” public safety.

The Supreme Court concluded that pre-trial detention under the Bail Reform Act “is regulatory in nature, and does not constitute punishment before trial in violation of the Due Process Clause.” (SupremeCourt.gov)

The number of people in jail pretrial has nearly quadrupled since the 1980s. (PPI)

Legislation

The End Money Bail Act limits detention to only those people that involve the risk of violent force or serious bodily injury and for whom no other conditions would be sufficient, and requiring periodic review of detention orders (dataforprogress)

Organizations like the Pretrial Justice Institute, the Bail Project, Marshall Project, and Prison Policy Institute (among many others) are working to help those most affected by the for-profit cash bail system, but their reach can only go so far. The cash bail system is unjust and undemocratic and must be abolished.

Resources guide and further reading on abolishing pretrial detention & the cash bail system :

• Prison Policy Initiative

• Pretrial Justice Institute

• After Cash Bail (Bail Project)

• Who Really Makes Money Off Bail? (Atlantic)

• Stronger Hand for Judges in the ‘Bazaar’ of Plea Deals (NYTimes)

• Abolish The Cash Bail System (Greg Caruso)

• Detaining the Poor (Prison Policy Initiative)

• The Hidden Costs of Pretrial Detainment (LJAF)

• The State of Bail Reform (Marshall Project)

• COVID-19 Pretrial Detention (Appeal)

• Reform the Bail System (Brookings)

• Criminal Justice Solutions 2018 (Brennan Center)

• The End Money Bail Act (Justice Collaborative)

• Brief History of Bail (SupremeCourtOhio)