On any given day, approximately 514,000 people are held in local jails across the United States. Though defendants are presumed innocent until proven guilty, more than 80% of the jail population are awaiting trial and have yet to be convicted of a crime, reported the Reason Foundation. Defendants accused of particularly serious violent crimes or who pose a credible threat to public safety may be detained in jail while awaiting trial. However, most defendants are entitled to pretrial release. Judges may impose conditions on a defendant’s release, such as electronic monitoring or supervision through a pretrial services agency.
Monetary release conditions, commonly referred to as
“cash bail” or “money bail,” are among the most common types of pretrial
release conditions in the United States. Cash bail allows defendants to secure
their release by depositing a specified amount of money with the court as
collateral, providing a financial incentive for compliance during the pretrial
phase. If a defendant appears as required through the disposition of their
case, the bail amount is returned to them. If a defendant fails to appear in
court as required, the bail amount is forfeited, and the defendant may face
additional criminal charges or penalties.
Cash bail was historically intended to provide a financial
incentive for defendants to show up at required court dates, but reforms
adopted in the 1970s and 1980s allow judges to also consider potential risks to
public safety when making bail decisions. Under the right circumstances, cash
bail is an appropriate tool for ensuring defendants cooperate throughout the
pretrial period. However, many defendants cannot afford the cost of bail and
are consequently detained for no reason other than their inability to pay.
Recent research suggests that bail decisions can
result in defendants losing their jobs, coerce defendants into accepting plea
bargains, and increase the probability that defendants are convicted. Given the
potential negative consequences of pretrial detention resulting from an
inability to afford cash bail, reform advocates have suggested limiting the use
of monetary release conditions. Reforms to pretrial policy require policymakers
to balance several competing interests, many of which are difficult to
quantify. For example, it is not possible to quantify the normative value of
the presumption of innocence or American’s Constitutional right to reasonable
bail. However, research evidence can shed some light on the efficacy of cash
bail for ensuring compliance during the pretrial period.
With some caveats, the studies included in this review collectively
suggest that monetary release conditions like cash bail do not consistently
improve court attendance and may not result in net crime reduction. Other
factors, including indigence, drug use disorders, and criminal history, are
generally stronger predictors of court attendance than the imposition of
monetary release conditions. Conservatively, we can conclude that the United
States relies too heavily on monetary release conditions. The bulk of available
evidence suggests that curtailing the use of monetary release conditions among
low-risk defendants would not result in dramatic drops in court attendance or
increased risk of reoffending. There is even some evidence that pretrial
reforms that reduce detention of low-risk, bond-eligible defendants may
actually improve public safety. Additional research is needed to evaluate more
ambitious reform proposals.
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