Cash bail keeps people not convicted of a crime behind bars

This is The Marshall Project’s Closing Argument newsletter, a weekly deep dive into a key criminal justice issue. Want this delivered to your inbox? Sign up for future newsletters.

On Monday, North Carolina lawmakers will return to the state capitol with plans to tighten rules around bail and pretrial release for people accused of crimes. The proposed legislation would require that people arrested in the state pay a cash bail to be released from jail before trial if they have a prior violent offense on their record.

The push comes on the heels of the fatal, unprovoked stabbing of 23-year-old Iryna Zarutska on a commuter train in August. Footage of the attack went viral and was amplified by some right-wing commentators and political figures, including President Donald Trump, as proof that lenient bail policies are allowing violent criminals to roam the streets.

The alleged attacker, Decarlos Brown Jr, had a long criminal history and had been released without posting bail after his most recent arrest. It’s not clear that the newly proposed bill, had it been law at the time, could have prevented Zarutska’s death. The maximum sentence for the crime in Brown’s most recent arrest — for misdemeanor misuse of 911 — is 120 days. A retired North Carolina judge noted that even if Brown had been denied bail altogether, he almost certainly would have been released by April, long before the August stabbing.

Cash bail is money a defendant pays to be released from jail before trial — often thought of as a kind of collateral or placeholder to ensure that the accused returns to court. In practice, however, courts often intentionally set bail at amounts defendants can’t afford — effectively using it as a tool to keep a legally innocent person detained until trial.

Republicans in New York are also working to advance new bail laws that would limit pretrial release, more than five years after a hotly contested bail reform package was signed into law. Currently, the state is somewhat of an outlier on pretrial release due to a 1971 law that makes it illegal for judges there to consider a person’s “dangerousness” when setting bail. The bill proposed earlier this month would allow considering dangerousness, and make it a key factor in release decisions.

The New York effort faces unlikely odds in the Democratic-controlled state legislature. The North Carolina bill has a clearer path to pass in the Republican-controlled legislature, but could face a veto by Democratic Gov. Josh Stein.

Then there’s Texas, which passed comprehensive and bipartisan bail-stiffening laws earlier this summer, including limiting the situations where people are eligible for cashless bond – or released without paying money. Voters there will also consider a state constitutional amendment this fall that would ban bail altogether for defendants charged with certain violent crimes.

Meanwhile, Texas Attorney General Ken Paxton is trying to dismantle bail policy in the state’s largest city. In a landmark 2017 ruling, a federal judge concluded that the misdemeanor bail system in Harris County — where Houston is located — violated the constitutional rights of poor people who could not afford to purchase their freedom. The ruling led to an agreement with the federal government that dramatically reshaped misdemeanor bail in the county, and it’s that agreement Paxton is trying to vacate.

Some criminal justice reform advocacy groups, like the Texas Civil Rights Corps, see these moves as connected to broader national political trends. In a statement, the organization said the changes in Texas mirrored an executive order signed by Trump in late August aimed at cracking down on jurisdictions with “cashless bail” pretrial release. Trump’s order gave Attorney General Pam Bondi until this coming Wednesday to name jurisdictions that have “substantially eliminated cash bail” for crimes that “pose a clear threat to public safety and order.” Under the order, those jurisdictions would then lose access to federal funds if they don’t change their bail systems.

Trump’s order was quickly followed by proposals in the U.S. House and Senate with similar aims. Nicole Zayas Manzano, deputy director of policy at The Bail Project — a national nonprofit that advocates for ending cash bail — said these efforts reflect a genuine belief among some supporters in the utility of money bail. But she added that they’re also “getting at the idea of increasing pretrial detention wherever possible,” suggesting that the deeper goal may be keeping more people in jail, rather than preserving any specific feature of the current system.

Even some of the president’s supporters agree that getting money back into the system isn’t necessarily the goal. John Koufos, a lawyer who worked with the Trump administration on the 2018 First Step Act, argued in a recent USA Today op-ed that the end result of Trump’s order would not be a broad revival of cash bail, but policies that put “risk of re-offense and severity of the crime first.”

As we often mention in this newsletter, laws are mostly written at the state level and enforced locally. That means threats to federal funding (or the promise of new grants) are the primary way for the president or Congress to influence the workings of the criminal justice system, and it’s not a partisan concept. In 2021, eight Democratic legislators introduced a bill to discourage the use of cash bail by taking federal justice grants away from states reliant on it.

That effort never made it out of committee, let alone to a floor vote. The recent Republican cash bail bill is much more likely to advance, with the party in control of Congress and the issue being a top priority for Trump.

Some conservative legal scholars have argued that these efforts may violate the Tenth Amendment, which sets limits on how much the federal government can intervene in areas traditionally handled by the states, like criminal justice.

Research on cash bail and crime rates is incomplete and mixed, but most studies have found that eliminating it does not increase overall crime rates, while reducing jail populations and minimizing the harms of jail. In fact, some research has concluded that time in jail is so destabilizing that increasing pretrial release reduces recidivism — which is to say, future criminal activity.

But public safety research may carry less weight if that isn’t the real focus of the administration’s efforts. “I don’t think there’s really much logic or much policy behind Trump’s declaration here,” Sharone Mitchell Jr., the chief public defender of Cook County, Illinois, told Bolts last month. “I really do think this is much more about politics. It’s about getting over a blue state.”

To read more CLICK HERE