Cash bail is a sanction for poverty

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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