Eliminating Cash Bail

Why cash bail marginalizes the black community, why we don't need it

- and what you can do about it.

A Cash Bail system is being applied in most jurisdictions in the US. A person accused but not convicted of a crime, can be detained before a trial at the court’s discretion. If that person has; or can obtain, enough money to pay the bail amount (an amount also determined at the court’s discretion), they can get released while awaiting trial. The assumption of this policy is that if the courts don’t demand some type of collateral, people will not appear at trial.

There are 4 serious problems with the reality of the cash bail approach:

1. It assumes guilt rather than presuming innocence

2. It’s based on an assumption that turns out to be false – bail does not improve appearance rates for misdemeanor and mid-level offenses.

3. It disproportionately effects people of color and lower socio-economic status.

4. It’s a massive waste of tax-payer dollars.

Largely, pretrial detention and bail amounts are determined by the subjective guesses of judges and prosecutors. By the US government’s own statistics, those subjective decisions contribute to systemic racial bias. Facing similar charges, black defendants are between 25 to 50% more likely to be detained pretrial than white defendants. Black and brown defendants receive bail amounts consistently higher (frequently twice as high) as amounts set for white defendants. 

A cash bail system penalizes poverty and criminalizes black people. If you can’t afford bail you stay in jail while wealthier citizens are released. If you are black, you are far more likely to be detained pretrial and to be subject to higher bail amounts. Pretrial detention makes up about 65% of the national jail population, the bulk of whom are black. This means that over half of the people in jail have not been convicted of a crime and tax payers are footing the expense.

Citizens without the money for bail can suffer in jail for weeks or months, and then be found innocent. One day in jail can put some citizen’s jobs at risk. Longer detention can affect personal health, deplete family resources, cause psychological trauma, negatively impact child custody status, be detrimental to one’s reputation within their community…

Cash bail likely started as an intuitive policy but there is no evidence it is effective. Washington DC was an early leader in pretrial reforms starting in the 1960s and largely eliminated cash bail in the 1990s. New Jersey eliminated cash bail in 2017. More recently Alaska, California, Colorado, NY and several counties have passed cash bail reform policies. There is ample evidence now that greatly reducing or eliminating cash bail positively effects the community, reduces tax payer expenses, maintains or improves appearance rates and does not increase public safety risks. The data supports that it’s time for change. The only real obstacles are institutional habits, bail bond industry lobbying and a lack of concern for the marginalized populations who suffer from the policy.

Check out this revealing Ted Talk by Robin Steinberg https://www.ted.com/talks/robin_steinberg_what_if_we_ended_the_injustice_of_bail?language=en