Sen. Robert Hertzberg and reality tv personality Duane "Dog the Bounty Hunter" Chapman at bail reform hearing, Sacramento, Ca. Photo: Rich Pedroncelli / AP
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The State of Bail

No Simple Solution to Reform

Almost two-thirds of the approximately 730,000 people incarcerated in U.S. jails on any given day have not been convicted of a crime. Zhen Zeng, Jail Inmates in 2016 (Washington, DC: Bureau of Justice Statistics, 2018), 2 & 4. Many simply can’t afford to pay their money bail —even when set at relatively modest amounts—while for others the bail amount is set intentionally beyond reach so they remain in jail awaiting trial. Color of Change and ACLU’s Campaign for Smart Justice, $elling Off Our Freedom (New York: ACLU, 2017), 8; and Timothy Schnacke, “Model” Bail Laws: Re-drawing the Line Between Pretrial Release and Detention (Colorado: Center for Legal and Evidence-Based Practices, 2017), 56.

This pretrial decision—whether someone is held in jail or released before trial—has significant consequences for people’s lives and the outcomes of their criminal cases. Color of Change and ACLU, $elling Off Our Freedom, 2017, 14. Yet judges continue to set money bail in amounts that people cannot readily pay, which effectively results in pretrial detention. This is despite the fact that most people released before trial present little risk to public safety and return to court on their own. For example, in Washington, DC, which has abolished money bail, 98 percent of people released pretrial were not rearrested for a violent crime while on release and 90 percent of people released pretrial made all scheduled court appearances. Pretrial Services Agency for the District of Columbia, “Performance Measures.” Also see generally Stephanie Wykstra, “Bail Reform, Which Could Save Millions of Unconvicted People from Jail, Explained,” Vox, October 17, 2018. Public sentiment supports a move away from using money bail: according to a 2018 survey jointly sponsored by Pretrial Justice Institute and Charles Koch Institute, 57 percent of Americans believe people should not be incarcerated solely because they cannot afford money bail. Pretrial Justice Institute, “With Increased Understanding of Current Practices, Americans Support Reforms to Pretrial and Money Bail Systems,” press release (Rockville, MD: Pretrial Justice Institute, July 12, 2018).

In August, California became the first state to fully eliminate money bail, building on precedent set by jurisdictions such as Washington, DC, and New Jersey. Alexei Koseff, “Jerry Brown Signs Bill Eliminating Money Bail in California,” Sacramento Bee, August 28, 2018 (updated August 29, 2018). Yet many organizations, including those who were originally champions of California’s bail reform legislation, rescinded their support amidst concerns that the new law relied too heavily on risk assessments, opened the door to excessive pretrial monitoring and onerous conditions of release, and might even lead to greater overall pretrial detention. Laurel Eckhouse, “California Abolished Money Bail. Here’s Why Bail Opponents Aren’t Happy,” Washington Post, August 31, 2018.

2018 also saw robust debate about the potential of such pretrial risk assessment tools to further embed racial bias in an already-biased justice system. Laurel Eckhouse, “Big Data May Be Reinforcing Racial Bias in the Criminal Justice System,” Washington Post, February 10, 2017; and The Sentencing Project, “Report to the United Nations on Racial Disparities in the U.S. Criminal Justice System,” April 19, 2018. See generally Elizabeth Hinton, LeShae Henderson, and Cindy Reed, An Unjust Burden: The Disparate Treatment of Black Americans in the Criminal Justice System (New York: Vera Institute of Justice, 2018). Over 100 prominent civil rights, racial justice, data science, and legal services organizations signed a statement released by the Leadership Conference for Civil and Human Rights cautioning against the use of pretrial risk assessment instruments entirely. The Use of Pretrial Risk Assessment Instruments: a Shared Statement of Civil Rights Concerns, 2018. On the other hand, pretrial scholars noted the potential for pretrial risk assessment tools, if used carefully, to limit pretrial detention and openly capture instances of bias and unfettered discretion by judges and other court system actors. Julia Angwin, Jeff Larson, Surya Mattu and Lauren Kirchner, “Machine Bias,” ProPublica, May 23, 2016.

Another growing concern was that “mass surveillance” will supplant mass incarceration as an unwelcome consequence of bail reform. Michelle Alexander, “The Newest Jim Crow,” New York Times, November 8, 2018. Even as jurisdictions across the country rely less on money bail or eliminate it entirely for some offenses, many have instead increased their use of mandatory pretrial conditions that resemble the onerous mandates of probation or parole, despite the fact that people released pretrial have not been convicted of a crime. Alexander, “The Newest Jim Crow,” 2018. The costs of these conditions—such as drug tests or GPS ankle monitors—are frequently borne by people as a condition of their release. Alexander, “The Newest Jim Crow,” 2018; and James Kilgore and Emmett Sanders, “Ankle Monitors Aren’t Humane. They’re Another Kind of Jail,” Wired, August 4, 2018.

In 2018, activists, advocates, and formerly-incarcerated leaders were center stage in the movement for bail reform, lending their voices to prosecutors’ races, legislative campaigns, community bail funds, and “bail outs” nationwide. For example, the Chicago Community Bond Fund released reports on the progress made on promises for bail reform in Cook County. Chicago Community Bond Fund, “Reports.” A coalition of advocates in Philadelphia, called the #No215Jail Coalition, successfully launched a bail fund, a campaign to close “The Creek,” one of Philadelphia’s jails, and helped to elect Larry Krasner, a former defense and civil rights attorney, to the position of head prosecutor in Philadelphia. See generally Decarcerate PA, “#No215Jail Coalition Marks Major Step Towards Justice in Mayoral Announcement of Plan to Close House of Correction,” press release (Philadelphia, PA: Decarcerate PA, April 18, 2018). The Robert F. Kennedy Human Rights organization launched the Mass Bail Out in October to pay bail for more than one hundred women and children in jail at Rikers Island in New York City. Jeffery Mays, “105 New York City Inmates Freed in Bail Reform Experiment,” New York Times, November 20, 2018. Finally, the National Bail Fund Network, a community of more than 40 bail funds in 24 states and nationally, was part of a series of “bail outs” on Mother’s Day. Community Justice Exchange, “National Bail Fund Network.”

Top Things to Know

  1. California celebrates a milestone in bail reform, but the end result may not impact mass incarceration.
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  2. The role of risk assessments in pretrial decisions faces new scrutiny.
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  3. A year after judicially ordered bail reforms, Chicago’s money bail situation first improved—and now is “getting worse.”
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  4. Local prosecutors are taking bail reform into their own hands, with mixed success.
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  5. Corporations and legislators target the bail bond industry.
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Facts and Figures

On Our Radar

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Discussion

Contributors

Vera Staff

External Reviewers

  • Gina Clayton-Johnson
  • Arthur Rizer
  • Timothy R. Schnacke