Written by Bri McCall, L’26
Introduction
In the United States, 2.2 million people are currently being held in prisons and jails.[1] However, some of these people have never been convicted of a crime. Instead, these people are in pretrial detention awaiting their day in court.[2]Many of these individuals only remain in pretrial detention because they (or their families) cannot afford the monetary amount, known as cash bail, set for their release.[3] After someone has been arrested, a determination is made as to whether that individual must remain in detention or if they can be released prior to their trial.[4] If it is decided that an individual can be released prior to trial, conditions for their release are set. Cash bail is one of the most common of these conditions for pretrial release.[5] Cash bail is a type of secured bond, in the amount that is determined to be sufficient to ensure the individual will return for their court appearances.[6] 61% of people who are arrested for a felony are given a cash bail assignment.[7] This means that one’s ability to await trial at home rests on one thing: the ability to pay.
History & Purpose of Cash Bail in the United States
The earliest references and uses of bail come from the Code of Hammurabi and ancient Rome.[8] However, America’s use of bail has English roots. Early American colonies adopted England’s practice of bail in which community members would often act as surerities.[9] After independence, the British bail practices were adopted and modified; emphasis was placed on the right to reasonable bail in the Judiciary Act of 1789.[10] In the early twentieth century, America switched from personal sureties to commercial securities and secured money bonds.[11] Where personal sureties acted only as a promise to pay in English common law, payment was now required in order to be released..[12] This led to the rise of bail bond agents and self pay.[13] Self pay was only available to those rich enough to pay, leading to a system in which wealthy individuals were released and poorer individuals had to remain in detention.[14] Many attempts at reforming the bail system in the United States have been made, including the Bail Reform Acts of 1966 and 1984.[15]Despite past reforms, the bail system in the United States continues to be heavily dictated by wealth.[16]
The goal of the bail system is pretrial release. However, release is subject to conditions so that those who need to face justice will. In the past, the only factor considered when determining pretrial release was the likelihood of the individual to appear in court.[17] This changed in the 1970s and 1980s when jurisdictions began to recognize community safety as a constitutionally protected purpose for limiting pretrial freedom.[18] Today, in almost every jurisdiction, only two factors can be considered when deciding if someone is eligible for bail (1) the likelihood the individual will reappear in court and (2) the potential threat to the community upon the individual’s release.[19] Even so, the main purpose of bail has remained the same: to ensure that the accused individual attends their court appearances.[20]
An accused person being unable to pay the amount for their release is not new. The first recorded instance of a judge setting unattainable cash bail in America was 1835.[21] The question of whether this is problematic is also not new—the potential implications of cash bail were addressed as far back as the National Conference on Bail and Criminal Justice in 1964.[22] At which, Robert Kennedy, the U.S. Attorney General at the time, stated:
“What has been demonstrated here is that usually only one factor determines whether a defendant stays in jail before he comes to trial. That factor is not guilt or innocence. It is not the nature of the crime. It is not the character of the defendant. That factor is simply money. How much money does the defendant have?”[23]
Despite the fact that cash bail has been a documented problem for decades, it appears that not much progress has been made to rectify the situation nationwide.
Effects of Cash Bail
Approximately 514,000 people are held in jails in the United States on any given day.[24] More than 80% of these people have not been convicted of a crime, and are instead awaiting trial.[25] Of those in jail, more than 60% are there because they cannot afford the amount set for cash bail.[26] Despite legal innocence, the average time spent in jail by pretrial detainees is twenty-six days.[27] This time spent in detention not only has profound impacts on the individuals themselves, but also on the outcomes of their case.[28] People that are jailed before trial are four times more likely to be sentenced to prison than people that are released before trial.[29] Additionally, according to the American Bar Association, over 60% of jail inmates nationwide remained in pretrial detention.[30] Over 30% of these inmates remained in detention due to their inability to pay bail.[31] The effect that pretrial detention can have on one’s ability to fight their case can be detrimental.
One of the primary issues with cash bail is not necessarily the concept of making an accused pay for their release, but rather that the judges setting bail often do not consider whether or not the defendant can pay the set amount.[32] A 2018 study from Philadelphia found that judges did not assess the defendant’s ability to pay their cash bail in two-thirds of their cases.[33] This same study found that people from low income neighborhoods were less likely to have the ability to pay and thus remained in pretrial detention longer, often for the entire duration of their case.[34] Judges need to consider what an individual could actually pay before setting cash bail. Without this consideration, low income individuals continue to suffer.
Pretrial detention can also have many collateral consequences, including a higher likelihood of being convicted, loss of employment, loss of housing, harsher sentences, a higher likelihood of pleading guilty, increased recidivism, and so on.[35] For example, pretrial detention can continue to lower one’s prospects in the labor market for three to four years after the bail hearing.[36] Conversely, pretrial release improves one’s probability of employment by 27%.[37] Beyond formal consequences of detention, an individual placed in pretrial detention can suffer irreparable social harm; even if the defendant is found not guilty, pretrial detention can greatly impact the way the community views the accused.[38]
Elimination of Cash Bail
Certain jurisdictions in America have already eliminated the cash bail system.[39] Beginning on September 18, 2023, Illinois stopped the use of cash bail after the passing of the Pretrial Fairness Act.[40] Instead of cash bail, a different kind of pretrial detention system is used in which a judge decides if an individual is eligible for pretrial release without any cash required.[41] Prior to the passing of this law, almost $140 million was spent each year by accused individuals to secure pretrial release.[42] This money now remains in the hands of the accused and their families.[43]
The purpose of cash bail is to ensure that the accused returns for their court appearance.[44] However, in Illinois, the failure-to-appear rate has remained very similar since the passing of this law; prior to the elimination of cash bail, the failure to appear rate was around 17% percent, while the rate after the law was passed remains around 15%.[45] These statistics show that (at least in Illinois) cash bail has little to no effect on what it was actually designed to ensure, that the accused would appear for their court dates.[46]
Despite pushback, advocates all over the country are fighting to eliminate cash bail.[47] There are even prosecutors who seem to recognize the issues caused by this monetary system.[48] For example, the office of the Commonwealth’s Attorney of the city of Norfolk, Virginia, does not seek cash bail for any case.[49] While the effort of those coming out against cash bail is certainly a move in the right direction, without the eradication of cash bail in America, the justice system will remain to be one based on the inequality of wealth.
Conclusion
The use of cash bail in the United States creates a wealth-based system of pretrial detention. Not only is this wealth-based system unjust, it seems to have little to no effect on whether or not the accused appear in court. However, the cash bail system does have a major effect on those in pretrial detention. The United States’ use of cash bail does nothing more than criminalize poverty by making the legally innocent remain in detention. No individual accused of a crime in this country should remain in detention due to their inability to pay for their release.
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Photograph of a gavel, handcuffs, and cash, in Our current cash bail system isn’t keeping people in or out of jail based on lethality—and it should be, R Street (Dec. 10, 2021), https://www.rstreet.org/commentary/our-current-cash-bail-system-isnt-keeping-people-in-or-out-of-jail-based-on-lethality-and-it-should-be/.
[1] Sandra Susan Smith, The Difference a Day Makes: How Spending Even One Day in Jail Can Have Devastating Consequences, Malcom Weiner Ctr. for Soc. Pol’y, https://www.hks.harvard.edu/centers/wiener/programs/criminaljustice/projects/pretrial-detention#full-project-description (last visited Feb. 17, 2025).
[2] Allie Preston & Rachael Eisenberg, Profit Over People: Primer on U.S. Cash Bail Systems, Ctr. for American Progress, (last updated Apr. 23, 2020), https://www.americanprogress.org/article/ending-cash-bail/.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] The History of the Bail Bond System, Delta Bail Bonds, https://www.deltabail.com/the-history-of-the-bail-bond-system/#:~:text=One%20of%20the%20earliest%20references,property%20or%20guarantees%20from%20others. (last visited Feb. 17, 2025).
[9] Id.
[10] Id.
[11] Timothy R. Schnacke, A Brief History of Bail, 57 Judges’ Journal 4 (2018) https://kscourts.gov/KSCourts/media/KsCourts/court%20administration/Pretrial_Justice_Task_Force/TRS_Brief_History_of_Bail_(1).pdf.
[12] Id.
[13] Caitlin Hill, A Brief History of Cash Bail, ACLU Ohio, (Dec. 12, 2017, 12:35 PM), https://www.acluohio.org/en/news/brief-history-cash-bail.
[14] Id.
[15] Id.
[16] See Preston & Eisenberg, supra note 2.
[17] Timothy R. Schnacke, A Brief History of Bail, 57 Judges’ Journal 4, 7, 35 (2018) https://kscourts.gov/KSCourts/media/KsCourts/court%20administration/Pretrial_Justice_Task_Force/TRS_Brief_History_of_Bail_(1).pdf.
[18] Id.
[19] Smith, supra note 1.
[20] Adureh Onyekwere, How Cash Bail Works, Brennan Ctr. for Just., (Feb. 24, 2021), https://www.brennancenter.org/our-work/research-reports/how-cash-bail-works.
[21] Schnacke, supra note 11.
[22] U.S. Comm’n on Civ. Rts., The Civil Rights Implications of Cash Bail 43–46 (2022) https://www.usccr.gov/files/2022-01/USCCR-Bail-Reform-Report-01-20-22.pdf.
[23] Id.
[24] Vittorio Nastasi, The Effects of Cash Bail on Crime and Court Appearance, Reason Found., (Mar. 12, 2024), https://reason.org/policy-brief/the-effects-of-cash-bail-on-crime-and-court-appearances/#:~:text=Recent%20research%20suggests%20that%20bail,probability%20that%20defendants%20are%20convicted.
[25] Id.
[26] Tara Watford, Unlocking the Truth: A Closer Look at Cash Bail Data, The Bail Project (Sept. 25, 2023), https://bailproject.org/data/unlocking-the-truth/.
[27] Smith, supra note 1.
[28] See supra note 24.
[29] Onyekwere, supra note 20.
[30] John Mathews II & Felipe Curiel, Criminal Justice Debt Problems, 44 Human Rights 6, (2019) https://www.americanbar.org/groups/crsj/resources/human-rights/archive/criminal-justice-debt-problems/.
[31] Id.
[32] U.S. Comm’n on Civ. Rts., The Civil Rights Implications of Cash Bail 43–46 (2022), https://www.usccr.gov/files/2022-01/USCCR-Bail-Reform-Report-01-20-22.pdf.
[33] Id. at 44.
[34] Mathews, supra note 30.
[35] Id. at 46.
[36] Id.
[37] Id.
[38] Id.
[39] See, e.g., Peter Hancock, A Year After End of Cash Bail, Early Research Shows Impact Less Than Many Hoped or Feared, Cap. News Ill., (Sept. 13, 2024), https://capitolnewsillinois.com/news/a-year-after-end-of-cash-bail-early-research-shows-impact-less-than-many-hoped-or-feared/.
[40] Peter Hancock, A Year After End of Cash Bail, Early Research Shows Impact Less Than Many Hoped or Feared, Cap. News Ill., (Sept. 13, 2024), https://capitolnewsillinois.com/news/a-year-after-end-of-cash-bail-early-research-shows-impact-less-than-many-hoped-or-feared/.
[41] Id.
[42] Id.
[43] Id.
[44] Onyekwere, supra note 20.
[45] Hancock, supra note 39.
[46] See id.
[47] See Bail Reform, ACLU, https://www.aclu.org/issues/smart-justice/bail-reform.
[48] See Off. of the Commonwealth’s Att’y, Plea Agreement Philosophy, Policies, and Procedures, City of Norfolk,(Mar. 21, 2022), https://www.norfolk.gov/DocumentCenter/View/70948/Norfolk-Commonwealths-Attorneys-Office-Plea-Philosophy-Policies-and-Procedures-03-21-2022.
[49] Id.