While cash bail — the system of requiring a monetary payment as a condition for release from jail — is used in limited circumstances in a few other countries, the United States and the Philippines are the only two countries in the world with a for-profit bail system dominated by commercial bond agencies.
The controversial system has faced intense criticism since it first emerged in the early 20th century. Here’s how bail works in the United States, why it’s so intensely criticized, and what alternatives could serve our communities better.
The Basics of How Bail Works
When a person is arrested and lands in jail, posting bail is usually the quickest way out. That bail can be cash, property, or a bond — a sort of “loan” from a generous friend or a commercial bond agent who covers the person’s bail on their behalf.
The purpose of the bail is to act as collateral for the court, ensuring a defendant actually shows up for their trial. If they show up to all their required court dates, they get the full bail back at the end (regardless of the outcome of the trial). If they fail to appear, the bail is forfeited to the court.
That sum of money is set by a judge but for many common crimes, most jails have a standard bail schedule so that an arrested person can simply pay that standard amount and leave (rather than wait for a formal bail hearing.)
While that schedule is standard, it’s not legally binding or inflexible. If a person can’t afford the amount listed in the bail schedule, the judge may lower it or waive bail altogether. Conversely, if the judge feels the arrested person poses an exceptional threat to the community or is a serious flight risk, they may set the bail exorbitantly high or, in cases where federal law allows, deny bail altogether.
Given this flexibility, bail can range from as little as $500 up to millions of dollars. The highest bail ever set (and not later ruled unconstitutionally excessive) was the $1 billion bail charged to Kim Freeman, who owned and operated two Ohio brothels disguised as massage parlors. The median bail, however, is about $11,700 nationwide but significantly higher in some states, like California where the median bail is $50,000.
In cases where the defendant can’t cover the full cost of bail, they can either sit in jail or hire a private bail bond agent.
Depending on which state they were arrested in, a jail stay could last anywhere from 50 to 200 days. Meanwhile, when hiring a commercial bail bond agent, defendants are charged an average 10% fee for the service. This fee is kept as a non-refundable service charge.
Since that fee is nonrefundable, the more than half of defendants who couldn’t afford to fork over $11,700 upfront to cover bail and instead hired a bond agent, paid $1,170 in fees that those who can afford bail didn’t have to pay.
Where Does Bail Money Go?
If a defendant fails to appear in court, the judge can rule that the bail paid is forfeited. In that case, the money typically goes to the jurisdiction the court is in — so a municipal court would send forfeited bail money to the city fund, while a state court would send money to the state fund.
That is, of course, if the courts actually succeed in collecting the bail money. For defendants who hired a bail bond agent, that’s not always a guarantee. Commercial bail bond lobbyists have used their influence to slowly chip away at local governments’ ability to actually collect bail money from bond agencies.
While a lack of transparency keeps the total numbers obscured, in California, bail bond agencies owe an estimated $150 million. In New Jersey, they owe $100 million. Other states see similarly large unpaid bail tabs. In many cases, bail agents can still collect the full bail amount from the arrested person, even if the agent hasn’t actually paid the forfeited bail to the court.
Criticisms of the United States’ Bail System
There are a lot of flaws in this system, largely driven by either a lack of transparency in the process or the undue influence of bail bond industry lobbyists pushing for legislation that increases their profits at the expense of arrested people and American taxpayers.
John Oliver highlighted some of those criticisms in a segment he did about our bail system.
Here are the main criticisms of our current cash bail system:
It’s Racially Biased
In a briefing from the Prison Policy Initiative, analysis found that Black defendants were 25% more likely to be held in jail pretrial than white defendants, even when controlling for severity of charges and other potentially relevant factors. The same analysis found that the median bail amount was about $10,000 higher for Black defendants compared to white defendants.
It Unfairly Sways Trial Outcomes
Overall conviction rates nationwide are 58% for nonfelony cases and 68% for felony cases. For defendants who spend a week or more in detention, the conviction rate spikes up to 92% and 85% respectively. These increased conviction rates are driven by a number of different pressures faced by people sitting in jail, including:
- Increased pressure from prosecutors to plea guilty in order to escape jail
- Decreased ability to meet with potential witnesses who could testify on your behalf
- Decreased ability to gather relevant evidence to build your case
It Leads to Unnecessarily High Incarceration Rates
Of the 746,000 people in jail in the United States, 470,000 (74%) are not convicted of any crime. They simply could not post bail and must sit in jail for the duration of their trial. Of those 470,000 people sitting in jail despite having no conviction, 319,000 (67%) are charged with nonviolent crimes like parole violations, drug possession, or even traffic violations.
In sum, the 470,000 people sitting in jail without any conviction represent a staggering 20% of the total number of people confined to jails or prisons across the United States. For taxpayers, this means we spend $11.71 billion each year to jail people who have not been convicted of any crime.
The country loses an additional $3.55 billion in lost economic activity from detaining people who would otherwise be going to work, paying bills, and spending money in their communities. S
peaking of economic activity, the months or years spent in jail awaiting trial can lead to losing jobs, losing homes, and more — even if a person is ultimately found innocent, these losses can make rebuilding the life they had before jail difficult or even impossible.
Even more staggering is the mortality rate. In a revealing 10-year investigation completed in 2019, Reuters found that 4,998 people, who were never convicted of a crime, died in jail while awaiting trial between 2009 and 2019. That represents about 66% of the 7,571 total deaths during that time period.
4,998 people died in jail simply because they had no money for bail. As many as 40% of those victims died within the first seven days of admission. The leading single cause of death in jails? Suicide.
It Violates the 14th Amendment by Privileging the Wealthy
As John Oliver points out in his segment, under the current system, someone arrested for driving on an expired license can spend years in jail because he can’t afford a $1,000 bail while notorious serial killer, Robert Durst, can go free, despite being charged with multiple murders and jumping bail twice, simply because he’s rich enough to cover his $450,000 bail.
According to a report from the Prison Policy Initiative, the median annual income of people in jail was $15,109 (before incarceration). At that level, the average $11,700 bail represents nine months of income. Even the 10% commercial bail bond fee is nearly a full month’s salary.
Just because most people cannot afford to pay their bail like Robert Durst does not mean they pose more of a flight risk or more of a threat to their communities than the wealthy serial killer does.
If income level is not an accurate or valid measure of risk, then detaining people simply because they’re too poor to post bail is not an accurate or valid way to reduce risk.
This wealth inequality is further exacerbated in jails with pay-to-stay programs, which exist in 41 states. In Riverside County, California, for example, incarcerated people are billed $142 per day of their stay.
For those who are forced to await trial in jail because they’re too broke to make bail or pay the commercial bail bond fee, these programs force them to run up a tab of even more charges that they cannot afford. And all this is happening while they’re stuck behind bars, unable to go to work.
The 14th Amendment of the United States Constitution reads as follows:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The ACLU and other civil rights organizations argue that cash bail violates this amendment and is, therefore, unconstitutional. The argument is that any law that does take away or restrict a right must be held to strict scrutiny (the highest level of scrutiny).
Since our bail system will restrict a person’s fourth amendment right to not be detained without probable cause, it must be held to strict scrutiny to ensure that it passes the following three criteria:
- The law serves a “compelling purpose” (i.e.- the law is necessary)
- It does through narrowly tailored means (i.e. – it’s limited only to clearly defined situations and doesn’t restrict rights any more than absolutely necessary)
- The law is the least restrictive means of achieving the government’s compelling purpose (i.e. – there isn’t an alternative approach that could achieve the same goal with fewer restrictions on rights)
The cash bail system fails to meet all three criteria. While the government does have a compelling purpose — ensuring that those charged with a crime show up to their trial — cash bail does not serve that purpose well.
The current national failure to appear (FTA) rate is about 33% but of those cases, nearly all do end up going to court. Only about 6% of defendants who fail to show up for a court date become fugitives. Most either didn’t know when or where the trial was or simply forgot to show.
With FTA rates as high as they are, it’s clear that cash bail doesn’t serve its purpose well. It applies restrictions arbitrarily, on the basis of income rather than on the basis of real measures of risk. And, as you’ll see below, there are less restrictive alternatives that serve that purpose better.
Better Alternatives to Cash Bail Systems
Efforts to reform or abolish our for-profit cash bail system have been ongoing since the system was first established in the early 20th century. Here’s how some of those alternatives would work.
Citation and Summons Instead of Booking
For most low-level offenses, there’s no reason to waste resources by arresting a person and taking them to jail to book them. Instead, police officers could simply write out a citation and a court summons and let the person get back to their day. It would be more cost-effective, fairer, and allow the police to spend more time on urgent work like addressing violent crimes.
Automatic Bail for All but Exceptional Cases
Those charged with low-level or nonviolent offenses should be released from jail by default. With automatic bail, standards could be set based on offenses. For very minor offenses, like driving on an expired license, a person would be released immediately and without condition (except the condition that they show up for trial.)
As the offense becomes more serious, the conditions applied to bail would become stricter — but still limited to non-financial ones like agreeing to submit to supervision, comply with drug or alcohol testing, check-in periodically with an officer, and other means of ensuring the person shows up to court.
The only cases where it might be necessary to detain someone would be domestic violence charges, murder charges, and similar cases where there is a serious threat to the community or flight risk.
Flexible Scheduling and Court Notifications
A more transparent trial date scheduling system would dramatically improve court appearance rates. Most failures to appear are the result of either not knowing when or where the trial is; forgetting the trial date; or scheduling conflicts with work or school.
Simply allowing the defendant to schedule a date and time that works for them — just as we do for any other appointment — would improve the likelihood of the person showing up. Likewise, sending text, email, or mail reminders to the defendant would decrease the risk of someone forgetting they have to go to court.
When New York simplified its summons notices to make trial dates clearer and began sending text message reminders, FTA rates plummeted to just 2.5%. The changes cost the state just $2 per defendant per year.
Enhanced Pretrial Services
Pretrial services include things like assessing flight risk, handling check-in calls with officers, providing transportation to court, supervising higher risk defendants, and other work that helps keep defendants accountable without keeping them in jail or charging them exorbitant bails they can’t afford.
On the whole, a robust, effective pretrial service system costs about $8 per defendant per day or $1.2 billion per year. That’s just 10% of the $11.71 billion per year we currently spend on keeping people locked up. We could save $10.5 billion per year, improve court appearance rates, and avoid locking innocent people up in jail for months or years while they await trial.