In our Explainer series, Justice Collaborative lawyers and other legal experts help unpack some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines—like bail, civil asset forfeiture, or the Brady doctrine—so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers quarterly to keep them current.
In San Francisco, 64-year-old Kenneth Humphrey spent a year in jail, held on a $350,000 bond he could not pay, after being accused of entering a man’s home and stealing $7 and a bottle of cologne. In setting Humphrey’s bail amount, the trial court made no inquiry into his ability to pay or any alternatives to cash bail, but instead relied on California’s preset bail schedules.
In January, he experienced hope after the California Court of Appeals granted him a new bail hearing and ordered the judge must consider Humphrey’s ability to pay. In powerful language, the court wrote: “[T]he problem this case presents does not result from the sudden application of a new and unexpected judicial duty. … [I]t stems instead from the enduring unwillingness of our society, including the courts . . . to correct a deformity in our criminal justice system that close observers have long considered a blight on the system.”
The California attorney general promised not to appeal the ruling, but the San Francisco district attorney’s office at first delayed Mr. Humphrey’s bail hearing, arguing that the lower court lacked jurisdiction until the higher court certified the opinion. “Just because the attorney general is not seeking review doesn’t mean that the Supreme Court won’t decide to review on its own.” And in fact, it decided to do just that in May, just weeks after a judge finally agreed to Humphrey’s release.
As many as 500,000 people are held around the country in local jails because of their inability to pay bail, mostly for low-level offenses. People held on bail have been accused, but not yet convicted, of crimes. They often are locked up only for inability to pay the amount determined by a judge, frequently based on a preset bail schedule, and not because of an individual assessment based on risk or threat to public safety. If someone is unable to pay bail, he or she remains locked up until his or her case resolves through a plea, until trial is over, or until bail is paid. This can range from days to years.
1. What we know about bail
Nationwide, more than 60 percent of jail inmates are jailed pretrial; over 30 percent cannot afford to post bail. Black and Hispanic defendants are much more likely to be held on bail than white defendants. [Criminal Justice Policy Program / Harvard Law School]
Often, those being held on bail have simply been accused of low-level offenses. Seventy-five percent of pretrial detainees have been charged with only drug or property crimes. [Criminal Justice Policy Program / Harvard Law School]
Being jailed pretrial has collateral consequences: It leads to people losing their jobs, not being able to care for their children, and losing contact with loved ones. Holding people in jail who do not pose a significant safety risk also exacerbates overcrowding, creates unsafe conditions, and places a huge financial burden on taxpayers. [The Price of Freedom / Human Rights Watch]
A study out of Kentucky found that people who are held because they cannot afford bail are 40 percent more likely to commit another low-level offense. In other words, jailing people who cannot pay bail is criminogenic. [The Hidden Costs of Pretrial Detention]
We also know that people are more likely to be acquitted if they pay bail, in part because they are less likely to take plea deals just to get out of jail. Being released before trial closely correlates with a not-guilty verdict, suggesting that the system is not punishing the most guilty, but rather the people who cannot afford to pay for their release. [The Atlantic / Bouree Lam] [Pretrial Justice Institute]
One study suggests that those people are “over three times more likely to be sentenced to prison” and “over four times more likely to be sentenced to jail” than those who are not detained pretrial. [Criminal Justice Policy Program / Harvard Law School]
Similarly, a study out of Columbia Law School found “significant evidence of a correlation between pretrial detention and both conviction and recidivism.” [The Heavy Costs of High Bail / Arpit Gupta et al.]
Meanwhile, there are costs to taxpayers as well. Incarcerating individuals awaiting trial costs taxpayers $13.6 billion each year. [Prison Policy Initiative] There are effective, low-cost ways of ensuring that defendants appear at trial, including a simple notification system that reminds people of their court dates. [Court Appearance Notification System: Evaluation Highlights / Multnomah County]
2. The Role of the Bail Industry
In states and cities that want to reform their use of bail, the biggest obstacle remains the bail bond industry. For-profit bail bonds are legal in almost every state.
Money bail has been taken over by private companies that make profits from those who cannot afford it. Bail bond costs are often covered by family members, which puts an additional financial strain on the already-struggling children of the jailed. [Ella Baker Center / Who Pays?] Many people spent years paying off their bail amounts to private insurers. [Report / Color of Change and ACLU]
There’s some evidence that the bail bonds industry is intentionally intimidating decision-makers to urge them to oppose bail reform. Duane Chapman, star of the reality television series “Dog the Bounty Hunter,” has sat in the front row staring down lawmakers contemplating striking down monetary bail. [Jazmine Ullola / L0s Angeles Times]
Bail bond companies regularly give campaign contributions to prosecutors. Eric Gonzalez, the Brooklyn DA often thought of as a progressive, accepted such contributions. After the media found out about it, he gave the money back. [Carimah Townes / The Appeal] Dallas District Attorney Faith Johnson similarly received $5,385 from 13 bail bond companies and the Texas Bail PAC.
3.A Growing Consensus That America’s Bail System is Broken
A wide range of elected officials, cultural luminaries, criminal justice advocates, fiscal conservatives, and law enforcement organizations agree that the current bail system is broken. Bail reform is possible through legislative and judicial change, and also through policy changes that local prosecutors can make.
The public wants to see change. In Arizona, a poll conducted by the state’s Supreme Court found that two-thirds of those surveyed thought that only those who are a safety risk or unlikely to appear in court should be held for failure to pay bail. [Andrea Kelly / Arizona Public Media]
Eliminating cash bail also has wide support among law enforcement, like Cook County Sheriff Tom Dart and victims’-rights groups like Marsy’s Law for Illinois. [Reuters / Fiona Ortiz]
And it has bipartisan support. Conservative groups are demanding change to the cash bail system. In Ohio, for example, the conservative Buckeye Institute released a report calling the state’s cash bail system an “inefficient, expensive, unfair means of protecting communities that has proven no guarantee to stopping repeat offenders.” [Peter Krouse / Cleveland.com]
Judges are also calling for reform to the bail system, including California’s Chief Justice Tani Cantil-Sakauye and former New York Chief Judge Jonathan Lippman. [Jonathan Lippman / Washington Post]
And celebrities are spreading the word. Athletes like Malcolm Jenkins and Anquan Boldin are advocating against money bail. [Malcolm Jenkins & Anquan Boldin / The Appeal]
And so are musicians like Common and Jay Z. [Shawn Carter / Time]
Two video clips, one from John Oliver’s show, and the other one a mini-documentary from Brave New Films, discuss the problems with the cash bail system.
4. The Role of Prosecutors
Prosecutors have the ability to reduce the use of cash bail. While judges are the ultimate gatekeepers, prosecutors play an important role in the process and can advocate for bail reform, screen cases early, and establish a presumption of recommending release. [Casey Tolan / Slate]
Fair and Just Prosecution (FJP), a group that brings together newly elected local prosecutors to promote “a justice system grounded in fairness, equity, compassion, and fiscal responsibility,” urges all prosecutors to “publicly support the elimination of money bail. DAs should use their bully pulpit to communicate the harms of the money bail system and the need for reform.” [Issues at a Glance: Bail Reform / Fair and Just Prosecution] Miriam Krinsky, executive director of FJP, says: “Common sense dictates that people should not be held in jail simply because they cannot afford a monetary payment.” [Miriam Krinsky / USA Today]
In June 2017, Kim Foxx, the lead prosecutor for Chicago, announced that her office will no longer seek money bail for defendants accused of low level offenses. According to Foxx, “Routinely detaining people accused of low-level offenses who have not yet been convicted of anything, simply because they are poor is not only unjust — it undermines the public’s confidence in the fairness of the system.” [Chicago Tribune / Steve Schmadeke]
Harris County, Texas, District Attorney Kim Ogg supported the elimination of bail for people accused of misdemeanors and wrote a brief from her office supporting the use of pretrial assessments for those accused of low level crimes. [Brief / Kim Ogg’s Office] More than 60 prosecutors from around the country, including Kim Foxx, George Gascon, and Mark Gonzalez signed an amicus brief in support of the plaintiffs in the Harris County litigation. [Brief Amici]
The California attorney general also wrote a brief supporting the elimination of the cash bail system in California. [Brief]
In February 2018, newly elected Philadelphia District Attorney Larry Krasner announced that his office would stop seeking bail on 25 criminal charges, which include retail burglary, prostitution, unauthorized use of a motor vehicle, resisting arrest, providing false identification to law enforcement, and many drug offenses. [Alec Ward / Reason]
During the primary in Bexar County, Texas, Democratic candidate Joe Gonzales stressed the need to reform cash bail and “even the scales of justice” “so that people who commit minor offenses don’t stay in jail because they don’t have enough money to post bond.” He handily beat incumbent Nico LaHood in the primary. [Elizabeth Zavala / My San Antonio] Interim Contra Costa District Attorney Diana Becton has also expressed support for bail reform. [Sukey Lewis / KQED]
5. Bail Funds Make a Difference
While not a long-term solution, bail funds provide a short-term are helping to alleviate the burden of excessive bail on the poor. They are nonprofit organizations that front bond payments for those who cannot afford them. [Alysia Santo / The Marshall Project]
On Mother’s Day 2017 and 2018, several organizations partnered to create a Mama’s Bail Out Day campaign to pay bail for women to see their children. [Human Rights Watch] [No More Money Bail] Similar bailouts are happening around the country. [Bryce Covert/The Appeal]
The Bronx Freedom Fund grew out of the local public defender’s office and has bailed out more than 600 people charged with misdemeanors since 2007. Other similar funds have been established in major cities around the country. [Bronx Freedom Fund] [Chicago Community Bond Fund]
Some places, like Memphis, Tennessee, automatically charge bail funds fines and fees, making bail fund efforts difficult to sustain. [Alysia Santo / The Marshall Project] The Massachusetts bail fund was struggling financially until activists recently pitched in to help revive it. [Sept. 20, 2017 Edition / The Appeal Newsletter]
6. Courts are Taking Action
Courts are striking down existing bail systems as unconstitutional. Challenges to existing systems are pending in local courts around the country, in both red and blue states. State attorneys general and other members of law enforcement are also recognizing that cash bail hurts the poor.
On Jan. 21, 2018, civil rights groups sued Dallas County, alleging state and U.S. constitutional violations in its cash bail system. According to the complaint, Dallas County operates a two-tiered system in which poor defendants are detained indefinitely while wealthy defendants purchase their freedom pretrial. [Jolie McCullough / Texas Tribune] One of the plaintiffs is Shannon Daves, a 47-year-old homeless woman who the county held in solitary confinement because she could not afford the $500 bail set on her misdemeanor case. [C.J. Ciaramella / Reason]
In Dutchess County, New York, one judge became impatient with the protracted bail reform process and issued a scathing opinion attacking the money bail system. Police had arrested Christopher Kunkeli for shoplifting a vacuum cleaner from Target, a misdemeanor. A lower court judge ordered his bail set at $5,000, nearly half his annual income. Kunkeli remained in jail for nearly five months until he agreed to a plea deal. After Kunkeli’s release, the New York Civil Liberties Union filed a lawsuit on his behalf, contesting the court’s practice of setting bail without considering a defendant’s ability to pay. On Jan. 31, 2018, Justice Maria Rosa ruled that this system violates the Constitution’s due process and equal protection clauses. In her ruling, she noted that in New York, 60 percent of individuals are held in jail without a conviction, before their cases go trial; in New York City, that number is as high as 75 percent. [Alan Feuer / New York Times]
In April 2017, a federal judge put a pause on Houston’s use of its bail system, which it considered probably unconstitutional. [ODonnell v. Harris County] Prior to the 2016 filing, Harris County routinely jailed people for failure to pay bail on misdemeanors like driving without a license. [Federal Judge Strikes Down Houston-Area Bail System / Courthouse News Service] [New York Times / Michael Hardy] The Fifth Circuit largely upheld this decision, recognizing the two-tiered system of justice in Houston, although it allowed the county to take up to 48 hours after the arrest to provide the defendants with a hearing. [Jollie McCullough / Texas Tribune]
In June 2017, a Cook County judge issued an order requiring Chicago judges to consider a defendant’s ability to pay before setting bail. [Richard Oppel / New York Times] [Circuit Court of Cook County]
Last fall, a federal judge struck down the monetary bail system used against misdemeanor defendants in Calhoun, Georgia, as unconstitutional. [Jon Schuppe / NBC] The Department of Justice under President Barack Obama filed a brief in the case supporting the elimination of money bail. [Pete Williams / NBC] A similar lawsuit is pending in Alabama. [Amy Yurkanin / AL.com] And lawsuits have also been filed in Tennessee, Florida, and New York.
Officials in Nashville are contemplating significant changes after the nonprofit law firm Civil Rights Corps threatened to sue over its bail system. A group of judges, public defenders, and district attorneys is putting together a proposed plan to minimize cash bail, with the aim of starting reforms in March. [Adam Tamburin / The Tennessean]
In Massachusetts last August, the Supreme Judicial Court ruled that judges must consider a defendant’s inability to pay when setting bail. And when the judge sets an unaffordable cash bail that will result in extended pretrial detention, he must issue written or orally recorded findings of fact. [Bob Oaks / WBUR]
7. The Future of Bail Reform
State and federal lawmakers are debating legislation to eliminate or reduce the use of cash bail.
Alaska, a largely Republican “tough on crime” state, drastically curtailed cash bail. The new law, which took effect on Jan. 1, 2018, sought to stave off the rapid increase in the state’s incarcerated population, which grew by 27 percent between 2005 and 2014. The law created a pretrial enforcement division to determine, on a case-by-case basis, the likelihood that a defendant will show up in court or commit crimes if released. The judge reviews the risk assessment score, but prosecutors and defense attorneys can argue for harsher or lighter restrictions before the judge makes a decision. The judge can impose secured bail bonds only for individuals charged with violent offenses and with high risk scores, while those charged with nonviolent misdemeanors must be released. For all others, there is a presumption of release. [Bryce Covert / The Appeal]
With the backing of Atlanta Mayor Keisha Bottoms (who was pushed by civil rights groups and grassroots advocates), the City Council approved an ordinance in February 2018 to eliminate the cash bail requirement in municipal court for nonviolent misdemeanor charges or city ordinance violations. [Rhonda Cook / Atlanta Journal-Constitution]
On Feb. 1, 2018, the Philadelphia City Council unanimously passed a nonbinding resolution urging the DA, the state legislature, and state Supreme Court to reduce their reliance on cash bail. In a city where one-third of all defendants are incarcerated because they cannot afford bail, these reforms could have far-reaching implications for Philadelphia’s criminal justice system. The city’s DA, Larry Krasner, has already articulated plans to cease requesting cash bail for certain offenses. [Teresa Mathew / CityLab]
In 2017, bail reform legislation also passed in Connecticut [Huffington Post / Nick Wing] and New Orleans. [The New Orleans Advocate / Jessica Williams] New Jersey ended its cash bail system in 2014. [Reason / Scott Shackford]
Washington, D.C. largely eliminated cash bail in 1992, and now holds only those defendants deemed too dangerous to release. About 90 percent appear for their court dates. The Washington Post’s editorial board explained that although revamping pretrial release systems that rely on cash bail may involve upfront costs, it is a worthwhile and necessary investment. “In the longer term,” the editorial stated, “bail reform will produce substantial savings by reducing incarcerated populations, cutting corrections staffing and eliminating the need to build more jails to house pretrial detainees. Even if the balance sheet tilts toward an additional burden for states and localities, bail reform needs to happen because it’s the right thing to do. It is a disgrace for a civilized society to lock people up for no reason other than they lack the means to go free.” [Editorial Board / Washington Post]
In Ohio, two Republican state legislators introduced a bail reform bill in December of 2017. The bill would require judges to use validated risk-assessment tools when setting bail — a practice that occurs already in some but not all parts of the state. The bill is supported by the conservative Buckeye Institute’s Legal Center. [Peter Krouse / Cleveland.com] The ACLU has described the bill as an important first step, but has warned that more robust change is necessary to deprioritize cash bail and ensure that defendants have due process protections and the assistance of counsel at bail hearings. [Caitlin Hill / Cleveland.com]
Also in 2017, New Mexico voters approved a constitutional amendment that limited the use of cash bail. While the language is limited, advocates are hopeful that it will provide guidance for judges making determinations on pretrial detention. [Nick Wing / Huffington Post]
In July 2017, Senators Kamala Harris and Rand Paul introduced legislation to encourage states to reform cash bail systems. [Kamala Harris & Rand Paul / New York Times] [Text of Proposed Bill] [Larry Hannan / The Appeal]
In August 2017, the policy-making body of the American Bar Association approved a resolution that “urges governments to adopt policies and procedures that favor release on personal recognizance bonds or unsecured bonds, that permit cash bonds or secured bonds only upon a determination by the court that such financial conditions and no other conditions will assure appearance, and that pretrial detention should never occur due solely to an inability to pay.” [American Bar Association]