The bail reform movement claims that cash bonds are unfair and discriminatory

California passed legislation in August to get rid of money bail, joining the wave of states and local jurisdictions that have undertaken some form of bail reform over the past few years. When the new law goes into effect in 2019, people arrested and charged for a crime in California will no longer be asked to post bail as a condition of their release.

The trend away from money bail — the payment required for a person to be released from jail as they await court hearings — is a welcome development. The use of money bail is one of the most troubling features of our deeply unequal justice system.

Bail amounts vary widely, with a nationwide median of around $10,000 for felonies (though much higher for serious charges) and less for misdemeanors (in some places such as New York City, typically under $2,000, though much higher in some jurisdictions). But even the lower amounts are more than most people can pay, and many spend time in jail for lack of as little as $500 or even $250.

Our reliance on bail has essentially created a two-tiered justice system in the US. Many of the nearly half a million unconvicted people confined in jails on any given day are there because they can’t afford to pay bail. As people await court hearings behind bars, sometimes for months or even years, they suffer from inadequate medical care and even dangerous conditions, and many lose their jobs and housing. They also have a higher chance of being convicted than if they hadn’t been assigned bail, as they take plea bargains just to get out of jail, whether or not they actually committed a crime.

They and their families are also targets for the $2 billion-per-year for-profit bond industry, which routinely exploits people — disproportionately people of color — in desperate situations.

There’s a rising movement to fight the money bail system. Advocates and legislators across the country are pushing to get rid of money bail in their states and in local jurisdictions. They argue that the system imposes an enormous and unfair burden on people and their families, especially low-income people of color. Udi Ofer, the director of the Campaign for Smart Justice at the American Civil Liberties Union (ACLU), says the money bail system is “one of the most corrupt and broken parts of our justice system.”

Getting rid of money bail — and releasing many more people pretrial — is a high-impact policy shift that can dramatically improve of lives.

A brief history of bail

In the colonies, as in England, those who were eligible for pretrial release relied on friends and family (“personal sureties”) who agreed to pay an agreed-upon amount if they failed to appear at court. In this system, the vast majority of those who were deemed eligible for release actually were released, at least at first.

But in the 1800s, as people had trouble finding personal sureties, courts shifted to the use of “secured” money bail. The idea behind money bail is to provide a financial incentive for a person who has been accused of a crime — but not yet convicted — to attend court hearings at a later date.

Several forms of money bail are used in today’s courts. The most common form is “surety bail bond,” by which a person pays not the full amount but a fee — often around 10 percent of the bail amount — to a commercial bail agent. That bail agent agrees to pay the full bail amount if the person fails to appear at a court hearing. The 10 percent fee is not returned to the person, and bail agents often also require the person (or their friends and family) to sign over collateral to cover the full bail amount. The United States and the Philippines are the only two countries in the world with a legalized for-profit bond industry.

Another kind of money bail is “cash bail,” which is money paid to the court and returned — often minus a court fee — once the person returns for all court hearings.

As early as the 1920s, reformers began to point out the problems with the bail system. Bail agents abused their power; judges set money bail that people couldn’t afford to pay. By the 1960s, advocates were pointing to studies showing that assigning bail was unnecessary: The vast majority of people would return to court if released without paying money bail.

The Bail Reform Act passed by Congress in 1966 established that a person should be released on their own recognizance, or under the “least restrictive conditions” that could ensure their appearance at court hearings, and many states passed their own similar statutes. But while these statutes attempted to curb the use of money bail, they did not get rid of it, as judges sometimes still assigned money bail that people could not afford to pay.

In the 1970s and ’80s, fear of rising crime led to the Bail Reform Act of 1984. The act allowed a judge in a federal court to detain someone either for flight risk — that is, if there was convincing evidence that they would abscond if released — or if they were assessed to be a serious threat to public safety. Many states adopted similar statutes in the ’70s and ’80s. A few years later, the Supreme Court in United States v. Salerno affirmed the constitutionality of detaining someone for reasons of public safety, while also making it clear that “in our society liberty is the norm,” and detaining someone prior to trial is the “carefully limited exception.”

Nearly 30 years later, pretrial detainment is not a “carefully limited exception.” Judges routinely assign bail that people can’t afford to pay. Between 1990 and 2009, releases in which courts used money bail in felony cases rose from 37 percent to 61 percent.

Studies have shown that even at low amounts, most people cannot quickly post bail. They end up staying in jail for days or weeks (and sometimes much longer); for instance, in Philadelphia from 2008 to 2013, nearly 40 percent of those with bail set at $500 or less stayed in jail for at least three days. In these cases, money bail effectively detains people without giving them the rights they could have if they underwent a formal detention hearing.

Moreover, the way decisions about bail are made raises serious questions about the system. A judge setting bail usually takes mere minutes to issue a decision. There’s also evidence that this process is incredibly arbitrary. For example, recent analysis of bail decisions in New York City from FiveThirtyEight shows that the chance of being assigned cash bail varies wildly — between 2 and 26 percent for misdemeanors, and 30 to 69 percent for felonies — depending on which judge happens to be overseeing a court on a given day.

In many places, courts follow bail schedules — amounts that are based on charge — without taking into account details of a person’s case or their ability to pay, and often without defense counsel being present. Nearly 11 million people are admitted to jails across the country each year, many because of their inability to pay bail. (Most people in “jails” are unconvicted, whereas “prisons” are where people serve sentences.)

Beyond the sheer numbers are the personal stories of those who have suffered as a result of the money bail system. One story is that of Kalief Browder, a 16-year-old in New York City who was accused of stealing a backpack in 2010. His family couldn’t afford the $3,000 bail set by the judge, and he spent the next three years in a jail on Rikers Island awaiting trial. Browder refused to plead guilty, and his case was finally dropped by the prosecution, who sent him home. However, after years in jail, much of it in solitary confinement, Browder had trouble readjusting to his old life. He died by suicide in 2015.

The bail reform movement takes shape

Catalyzed by the injustice of money bail, many advocates and leaders across the political spectrum are pushing to end its use.

One important strategy for fighting the system is to argue in court that setting unaffordable money bail is unconstitutional — a violation of the due process and equal protection clauses of the 14th Amendment. Nonprofits including Civil Rights Corps, Equal Justice Under Law, the ACLU, and the Southern Poverty Law Center have lodged dozens of lawsuits challenging the practice in many states, including Texas, Alabama, Illinois, and California.

These suits have led to some major victories, including a 2017 ruling from a federal judge who found that the money bail system in Harris County, Texas, was unconstitutional. In the year after her ruling, more than 12,000 people — accused of misdemeanors and held on money bail that they couldn’t afford — were released. (The decision is being appealed.)

The fight against bail is also taking place at the local level, with the election of progressive district attorneys. District attorneys have enormous discretion in the cases they decide they will pursue and the charges they bring, as well as in whether they ask the judge to set bail in a particular case. Progressive district attorneys, such as Kim Foxx in Chicago and Larry Krasner in Philadelphia, have decided that their offices will not seek bail for a range of charges.

Advocates have also sought to push for reform in another venue: state legislatures. This year, California was the first state to legislate money bail entirely out of existence. Legislation in New Jersey that virtually eliminated money bail went into effect in 2017. (Washington, DC, also did away with incarceration as a result of money bail, back in 1992.) Some states, including Massachusetts, have passed statutes requiring that courts inquire into ability to pay money bail, and others, including Alaska and Illinois, have put restrictions on the cases in which people can be assigned money bail or encouraged courts to use “unsecured” bail (only payable if the person fails to appear in court).

But while there is wide consensus that bail reform is needed, there’s disagreement about what it should look like.

The shared goal of reforming bail is to get rid of the wealth-based pretrial system — and to do this without a significant increase in crime or failure to appear in court. There are many specific proposals across jurisdictions, but these are the main elements that advocates tend to agree on:

• Release the vast majority of people as they await court hearings with no conditions except making all court appearances, and make very limited use of pretrial detention.
• Increase use of “pretrial services,” which could include check-in calls with officers and texted court reminders (studies have shown these can significantly improve court appearance rates), as well as helping people attend court by offering transportation. In recent years, many states have passed legislation to create or bolster pretrial service agencies.

There is, however, a big debate among advocates about how to decide whom to detain pretrial — which gets us into the contentious topic of “risk assessment.”

A controversial tool

Risk assessment refers to a tool to help predict a defendant’s risk of failing to appear for court and rearrest. So far, risk assessment tools have been adopted by several states, including New Jersey, Arizona, and Kentucky, as well as by dozens of local jurisdictions across the country.

The tools use data from past cases to predict who is a “high,” “medium,” or “low” risk for not showing up to their court dates and rearrest, based on factors such as criminal record and age at arrest. An algorithm then produces a score, which is then used by judges in determining whether to hold someone in jail (“remand” them), or to release them to some form of supervision or on their own recognizance (with the agreement to appear for court hearings).

There are a variety of such tools available, including the Public Safety Assessment tool developed by the Arnold Foundation and the COMPAS tool developed by the for-profit company Equivant (formerly Northpointe).

One of the main arguments for using such algorithms is that judges are already making these kinds of predictions in their heads but are highly fallible and inconsistent. By adopting a tool, some argue, judges will have additional information to guide them on who to release into the community versus who to hold in jail pretrial. They argue that such tools can help courts better achieve the goal of reducing pretrial detention, without a rise in failures to appear in court or risk to public safety.

Cherise Fanno Burdeen, CEO of the Pretrial Justice Institute, stresses that the tools on their own should not determine who is detained. But she argues that they have an important role in improving the evidence about who is very likely to return to court and pose little risk to the community. “It’s inappropriate not to use the data that’s available to us to improve our decision-making,” she says.

However, many other advocates have spoken out against such risk assessment instruments. One argument is that risk assessment algorithms predict the wrong outcomes: Instead of giving the probability of risk of violent crime or real flight risk, they predict risk of any arrest and failure to appear in court. (There are a couple of exceptions such as the Arnold Foundation’s tool, which does give a separate score for chance of arrest for a violent crime.)

Another major concern is that the tools are biased against people of color. Because people of color have been disproportionately targeted by police, this argument goes, criminal history data will also skew accordingly — and in turn skew risk assessment results. (This has led to discussion of competing kinds of statistical fairness, as well as potential ways to adjust an algorithm to make it more fair.) Further, advocates also point out that an instrument could actually lead to higher pretrial detention — depending on the subjective decision of how “risky” is deemed too risky by the designers of the tool.

Finally, there’s a growing question about the real-world impacts of the tools, with researchers pointing out that we have little evidence on how they are used by judges. A recent independent evaluation from Kentucky shows many judges selectively ignored an algorithm’s recommendations, and that as a result, jail populations did not decrease over time as intended.

Opponents of risk assessment want the vast majority of people who are arrested to be released (some with pretrial services), and for the minority charged with certain violent crimes to have an individualized hearing in order to consider the specific factors and evidence in their case. While some acknowledge that prediction tools could be useful in making certain decisions — for instance, to determine those who should be released, or who could benefit from additional support — they oppose the tools currently on offer.

More than 100 groups, including the ACLU and NAACP, recently signed a statement advising against adopting pretrial risk-assessment tools, while giving recommendations to the many jurisdictions that have already adopted a tool — for example, the wider community should be included in designing a transparent algorithm, and any tool should be regularly audited by independent researchers to ensure that it is reducing jail populations and racial disparities. The debate about risk assessment is likely going to continue as more states and jurisdictions consider adopting a tool in the years ahead.

Assessing the risks of bail reform

Bail reform has had broad support from many quarters in recent years, with the major exception of — you guessed it — the for-profit bail industry, which has been vociferous in its warnings about the risk of getting rid of money bail. The industry warns that crime (and especially violent crime) will go up as more people are released. But this risk is likely not that high. Even the “high risk” group, as it is labeled in risk assessment tools, has only about an 8 percent chance of being arrested for a new violent crime within six months.

The experience of jurisdictions that have gotten rid of money bail also shows that releasing many more people doesn’t correlate with a high level of rearrest for violent crimes. Washington, DC, got rid of secured money bail and bolstered pretrial services in 1992; today, it releases 94 percent of those accused of crimes as they await court hearings. Of those people, 88 percent returned for all court appearances last year, and only 2 percent were arrested for a violent crime as they awaited court hearings.

The main risk that reformers tend to worry about is not a rise in crime, but instead, as puts it, the risk of replacing “one harmful system with another.” Advocates worry that legislation some states have considered or adopted will have the consequence of giving courts too much leeway in detaining people pretrial, or even encourage them to do so.

This was the basis for one of the major objections to the new California legislation from groups such as the ACLU: The bill states that many of those accused of misdemeanors will be released, but specifies a “rebuttable presumption of detention” for a wide range of non-misdemeanor charges. In those cases, the court would use risk assessment tools and potentially hold those deemed “high risk” in jail.

Essie Justice Group, a nonprofit organization of women with incarcerated loved ones, helped create and supported a previous version of the bill, but opposed the version that was passed. Gina Clayton-Johnson, the executive director and founder, said that the legislation “completely undermines the purpose for which black and brown women, formerly incarcerated, currently incarcerated, and low-income communities have been rallying around the cry for bail reform.”

There’s also a risk that in lieu of money bail, courts might start to assign a high number of people to unnecessarily onerous forms of supervision, such as electronic monitoring, which advocates argue can be nearly as punitive as being in jail.

These concerns underscore a broader point: What matters is not just getting rid of money bail, but taking care that any new system does much better to make liberty the norm, and pretrial detention or punitive supervision the carefully limited exception.

The future of bail

There’s a lot of momentum around bail reform that advocates believe will translate into further big policy shifts in the coming years. States like New York that considered — but did not pass — legislation to get rid of money bail (or much reduce it) this past year may well be able to do so in coming years. District attorneys are running progressive campaigns all over the country. There’s also legislation proposed at the federal level, including a bill put forward by Sen. Bernie Sanders (I-VT) and another from Sens. Kamala Harris (D-CA) and Rand Paul (R-KY), which include federal support for states in their bail reform efforts. (The federal system relies very little on money bail; the majority of people detained in federal cases are ordered to be held in jail.)

Part of the work of the ACLU (which is working on bail reform in 38 states), JustLeadershipUSA, Color of Change, and many other organizations is also to raise awareness of how millions of people are being incarcerated each year due to inability to pay bail, without being convicted. In the past few years, the topic has gone from being relatively low-profile to a major area of reform.

In the meantime, since legislative and judicial changes can take time, a rising number of charities are paying bail to get people out of jail now. These include many local and state groups that are part of the National Bail Fund Network, as well as the Bail Project (for which I volunteer) and New York City’s Dollar Bail Brigade, which pays bail for hundreds of people each year who, due to an administrative quirk of the city’s system, are stuck in NYC jails on $1. There are also campaigns to bail out many people at once: This month, the Robert F. Kennedy Human Rights organization is leading a mass bailout to pay bail for hundreds of women and teenagers held in Rikers Island jails in NYC.

While there are many, many serious problems with the criminal justice system, money bail stands out as particularly egregious: One in five people behind bars in this country is unconvicted, and many are there because they cannot pay bail of a few hundred to a few thousand dollars. In 1964, then-Attorney General Robert F. Kennedy said to Congress, “The rich man and the poor man do not receive equal justice in our courts. And in no area is this more evident than in the matter of bail. ... This is a cause in which there is great work to be done.”

More than 50 years later, Kennedy’s words ring truer than ever.

Stephanie Wykstra (@swykstr) is a freelance writer and researcher based in New York.

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