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Reform to cash bail and pretrial practices promotes public safety and decreases harm for those who are arrested.
Advancing Racial Equity and Justice, Criminal Justice, Criminal Justice Reform, Race and Criminal Justice
Senior Media Manager
twoodcome@americanprogress.org
Director, Federal Affairs
pgordon@americanprogress.org
Senior Director, Safety and Justice Campaign and Director, State and Local Government Affairs
jparshall@americanprogress.org
Until recently, jurisdictions across the United States saw growing support for reforms to the pretrial system. There was broad recognition that mass, pretrial incarceration was driven by archaic cash bail systems, causing a variety of negative consequences for individuals and communities.1 In communities large and small, representing individuals from across the political spectrum, efforts to reform cash bail systems have proved successful at both maintaining public safety and reducing the harms of pretrial incarceration.2 Law enforcement and prosecutors have joined the ranks of cash bail reform proponents, recognizing that wealth-based decision-making is unjust, erodes public trust, and is not effective at maintaining public safety.3
However, rising crime rates and the onset of the COVID-19 pandemic changed the national narrative around cash bail reform. Violent crime has been rising across the country since 2020, primarily driven by greater gun violence.4 These concerning trends are taking place in cities and towns nationwide, regardless of their history with cash bail reform. Although there is no evidence linking cash bail reform to high crime rates—and a plethora of evidence to the contrary5—cash bail reform has become an easy target for politicians looking to demonstrate they are taking action to address violent crime.6
Allie Preston, Rachael Eisenberg
The facts are clear: In jurisdictions where commonsense cash bail reforms have been implemented, those who await their trial in the community are no more likely to be re-arrested after bail reform was passed than before.7 Put simply, releasing more people has not led to higher crime rates.
The stories of individuals harmed by unjust cash bail systems, like the ones compiled in this issue brief, provide persuasive evidence of the need for reform.8 There are broad, long-term public safety benefits to having people remain connected to their families, their housing, and their jobs—rather than having them held unnecessarily.9 Fearmongering should not win the day over good policy that contributes to a holistic community approach to safety.
Historically, both the general public and government officials have too narrowly defined public safety, basing it solely on metrics of crime and recidivism.10 But these are just two of a range of factors that influence the safety of communities. Recently, criminal legal reform advocates have initiated a national push to broaden our understanding of public safety to include factors such as community connections, economic resources, and access to employment, housing, and health care. This broader definition seeks proactive approaches and alternative responses to crime beyond more arrests and incarceration.11 By reducing harms caused by cash bail and pretrial incarceration,12 cash bail reforms offer an upstream approach to achieving broader public safety goals.
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More than 95 percent of crime in the United States is nonviolent; the vast majority of people who are arrested can safely await their trial in the community versus behind bars. At the same time, 80 percent of people in local jails in the United States have not been convicted of a crime.13 The number of people incarcerated pretrial increased 433 percent from 1970 to 2015, almost entirely due to increases in cash bail assignments, the amount of money assigned by the court that a person must pay to secure their release.14 As a result of excessive cash bail, hundreds of thousands of people are incarcerated each year not due to any real public safety concern, but rather due to a lack of money.
While some attempt to paint cash bail reform as dangerous and cash bail as a tool for public safety, evidence from jurisdictions that have reformed their cash bail practices tells a different story. Reducing reliance on cash bail has not led to a decrease in public safety. In places that have implemented cash bail reform, rates of pretrial re-arrest remain unchanged. In New York,15 New Jersey,16 Washington, D.C.,17 and Santa Clara County, California,18 for example, at least 99 percent of people completed the pretrial period without an arrest for a serious crime. Cook County, Illinois,19 Harris County, Texas,20 Kentucky,21 and Philadelphia22 similarly maintained stable re-arrest rates before and after reforms were implemented. And after cash bail reform was passed in New Mexico and Yakima County, Washington, a larger percentage of people completed the pretrial process without a new arrest.23
At the same time, numerous studies show pretrial incarceration has a “criminogenic effect,” meaning that it increases rather than decreases crime.24 One study found that cash bail assignment was associated with a 6 percent to 9 percent increase in recidivism.25 After 23 hours in pretrial incarceration, any additional time in detention has been “associated with a consistent and statistically significant increase in the likelihood of rearrest.”26
Many jurisdictions have made misdemeanors and other low-level, nonviolent charges ineligible for cash bail, requiring judges to consider additional release options, such as release on recognizance or release with conditions. Restricting the role that money plays in the pretrial process is also a vehicle for reducing racially and economically disparate outcomes.
According to reporting from The New York Times, M.O. was a 22-year-old single mother when she was arrested for driving with a suspended driver’s license. Living paycheck to paycheck, it was impossible for her to afford the excessive $2,500 bail that the court assigned her. As a result, M.O. spent three days in jail away from her young child, despite posing no individual or public safety risk.27
Each year, thousands of people like M.O. could safely remain in their community—yet they are forced to endure unnecessary incarceration even before they are convicted of a crime. They suffer severe, long-lasting, and far-reaching consequences of pretrial detention.28 Cash bail reform helps to ensure that mothers like M.O. can remain with their children and their families.
Cash bail systems often rely on bail schedules—arbitrary lists of bail recommendations that vary depending on the charge and jurisdiction.29 Bail decisions have been described as “assembly line” justice, where bail decisions are made quickly, often by nonjudges, with little information about the person whose freedom is at stake.30 As a result of the pandemic,31 remote and video bail hearings are becoming more common; individuals may be denied the opportunity to meet with their lawyer—if they are fortunate enough to have one—and may never appear in person with the presiding judge.32 With hundreds of cases on each docket, it is not unusual for hearings to last just a few minutes. This limits the ability of bail setters to assess a person’s individual circumstances such as family obligations, employment status, or other important considerations.33 Cash bail reform allows for, and sometimes requires, bail decision-making be informed by a more comprehensive understanding of people’s individual circumstances. This allows for bail setters to provide a case-by-case assessment to determine appropriate conditions of release and assign supportive community-based supports, all of which meaningfully contribute to public safety.
Access to an attorney at an initial bail hearing can play an important role in bringing people’s individual circumstances to the attention of bail setters. Despite substantial evidence that access to counsel during a first appearance significantly improves outcomes, most states do not require counsel to be provided for bail hearings.34 Studies have demonstrated that people with counsel at their first appearances are more likely to be released without cash bail or have a bail amount reduced.35
The presence of counsel at bail hearings also increases equity and improves the efficiency of the legal system. Access to counsel has been demonstrated to reduce racial disparities in pretrial incarceration rates,36 and multiple studies suggest that it can decrease overall criminal legal spending, reduce courts’ case burdens, and improve community perception and trust of the criminal legal system.37 In recent years, Illinois, Nebraska, Utah, and West Virginia have created a right to counsel for bail hearings.38
Recognizing that individualized decision-making improves outcomes at the pretrial stage and ensures that a person’s specific circumstances are appropriately considered, some jurisdictions have implemented reforms that require that judges take into consideration an individual’s ability to pay when assigning cash bail. This ensures access to wealth is not a determining factor in who is incarcerated pretrial. In jurisdictions where ability to pay is not considered, the consequences of being assigned unaffordable cash bail can be life-changing.39
As published in Wisconsin Watch, D’s ex-girlfriend fled the police while driving his car. The police later found and impounded the abandoned car. When D arrived to collect it, he was arrested on a felony charge of eluding the police. D’s jurisdiction in northeast Wisconsin had no requirement to consider ability to pay when assigning cash bail. Despite having an alibi and credible witness statements, the court denied his request for an affordable cash bail amount. During the 84 days he spent in jail before his case was dismissed, D’s shared custody agreement was significantly altered, and he lost his job, apartment, and car.40
Every person has unique social, health, and economic factors that affect their likelihood of returning to court or remaining arrest free. The conversation about cash bail reform often overlooks the opportunities that such reforms create to provide people with community-based services to improve their lives and address their unmet needs. Local bail reform efforts often include establishing or increasing funding for pretrial services agencies that provide services, including monitoring and check-ins, transportation support, court reminders, and connections to voluntary social services.41 What’s more, community bail funds, often organized by grassroots groups that seek to provide a pathway to freedom for those assigned unaffordable cash bail amounts, have been expanding across the country.42 Typically based on some kind of referral process, these funds provide money to pay cash bail on behalf of people who cannot afford it. Similar to pretrial services agencies, community bail funds offer services to help address the complex factors that may lead to an arrest and work to address them at the root. Bail funds and pretrial services agencies have demonstrated success in supporting released individuals while ensuring public safety by disrupting the factors that ultimately lead to crime.
According to accounts from the Bail Project, N, a Latina transgender woman, was arrested and incarcerated in Los Angeles after being accused of stealing a bike. N was experiencing homelessness at the time of her arrest and was not able to afford her $7,500 cash bail assignment. For four months during the pandemic, N was incarcerated in the Men’s Central Jail in Los Angeles until she was bailed out by the Bail Project. With the support of the Bail Project and PATH—People Assisting the Homeless, N was able to find temporary housing.43
By conducting individualized assessments with those released, community bail funds and pretrial services agencies provide people with access to mental health and substance use disorder treatment as well as benefits access; support their effort to find housing and employment; and assist people who seek further education. In providing supportive resources and services, these funds and agencies address the root causes that lead to crime rather than respond after the fact. Without cash bail reform, many people do not have access to the resources necessary to support them during the pretrial process.
The evidence is clear: Cash bail reform is not a threat to public safety. In fact, it can play a critical role in achieving broad public safety goals outside of simply reducing crime. Reliance on cash bail produces vast negative consequences, as evidenced by the experiences of thousands of people who can safely remain in the community pretrial yet are unnecessarily incarcerated due to their inability to pay bail. Their stories—often overshadowed by rare cases sensationalized through media coverage or by those with an interest in maintaining current cash bail practices—give a more complete picture of how current cash bail systems operate and how they must change to balance the goals of public safety and justice.
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