Mass Incarceration: Eliminating the Cash Bail System
With 10 million people incarcerated every year and 80 percent facing charges for low-level crimes, as reported by Forbes, the U.S. criminal justice system evidently impacts a major portion of the population. According to the U.S. Department of Justice, between 60 and 70 percent of inmates confined in jails around the U.S. are being held prior to any conviction for an average of 10 months, largely due to an inability to post bail. By eliminating the cash bail system and moving towards a system of unbiased risk assessments, we can reduce issues of racial inequality and mass incarceration in the U.S. criminal justice system.
The cash bail system generates inequality along socioeconomic and racial lines. Until the end of the 19th century, U.S. courts allowed the accused to be released without upfront payment, provided they could find a reference to ensure their return for trial. The defendant only had to pay if they failed to appear at the scheduled trial. But at the turn of the 20th century, the courts changed to a secured bonds system, in which payment was due before a person could be released. The use of secured bonds created a system in which millions of people are held in jail, confined and untried in court, most often for low-level offenses. Bail—and freedom—now depend on a defendant’s financial standing. Additionally, the Sentencing Project, a Washington, D.C.-based criminal justice research and advocacy center, cited that judges tend to favor white people over minorities in pre-trial proceedings. African Americans ages 18 through 29 are given significantly higher bail rates than any other demographic for the same crimes. When bail is set, black and Latino defendants are more likely to receive unreasonably high bails. Therefore, the impact of the cash bail system is largely borne by minority groups and impoverished communities.
The cash bail system doesn’t accomplish its intended goal. Instead of keeping dangerous criminals from roaming the streets before they have been fully tried, it simply releases people on the basis of their ability to pay rather than the likelihood that they might commit crimes. Consider two defendants for the same crime: one non-Hispanic white defendant and one minority defendant, which due to persisting structural inequalities is likely poorer. After assignment of cash bail, the minority defendant will often remain incarcerated before trial, unable to post bail, while the white defendant will walk free. The Prison Policy Initiative released a report in November 2020 detailing that out of 13 jurisdictions that have instituted pre-trial reforms, Washington, D.C., New Jersey, and Kentucky among them, they found that "All but one of these jurisdictions saw decreases or negligible increases in crime after implementing reforms." Cash bail does not address the problems of pre-trial public safety or crime rates; it merely perpetuates divisions along racial and socioeconomic lines and drives instability that contributes to crime—the very issue cash bail aims to solve.
This system is costly – both to defendants’ lives and society as a whole. Even without a guilty conviction, the simple fact of being detained pre-trial causes innocent people to lose their jobs, homes, custody of their children, and respect from members of their community. Detention upturns the lives of defendants. This immense destruction—caused merely by the faults of an aged system—can cause such desperation that people who never committed a crime in the first place turn to criminal acts to restore their livelihoods. Studies have indicated that even a short detention before trial increases the likelihood that defendants will be arrested and charged with a new offense in the future by 130 percent. And for those who are convicted, the cash bail system often contributes to unjust outcomes wherein the punishments do not fit the crimes. Those who are unable to pay cash bail and are detained pre-trial receive statistically harsher sentences in court. They are four times more likely to be sentenced to jail and receive jail sentences that are three times longer. The worse the punishments, the worse the rates of recidivism (the probability that a defendant will recommit a crime) as well. Detainees are also more likely to plead guilty, even if they aren’t, just to reduce their possible jail time in the future. This system costs taxpayers millions of dollars, despite not effectively increasing public safety. On average, it costs $85.83 per day to keep people in jail. In the state of Virginia, taxpayers spend over $400 million every year just to jail those who haven’t even been convicted.
Pre-trial detention based on unfair cash bail assignments also fails to uphold the principles of the U.S. Constitution. In 1987, the Supreme Court tried the case of US v. Salerno. Salerno was allegedly tied to the mafia, and was detained pre-trial, per the 1984 Bail Reform Act, which allowed the detention of criminals if the government could prove the defendant was dangerous to the community. The Supreme Court held that his detention was constitutional. They argued that the decision to detain a defendant before trial is a balance of weighing two vital government responsibilities: the defense of individual liberty and the protection of public safety. When a defendant’s possible individual danger to the community outweighs the protection of their liberty, it is the government’s responsibility to detain them. However, Chief Justice William H. Rehnquist, who upheld the act as constitutional, specified: “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” He specifically listed those carefully limited exceptions, offenses in which this method is fair and just. First, serious offenses. Certainly not low-level drug offenses, for which the majority of those who cannot meet their unfair cash bail assignments are detained before trial. Additionally, the government must meet a heavy burden to prove the defendant’s threat to others. Rehnquist also noted that even with the allowance of pre-trial detention, all defendants are still entitled to a speedy trial. So unfairly long pre-trial detentions, especially for those who pose no risk to the public, are unconstitutional on multiple levels.
We need to replace cash bail with a better system. The Pretrial Services Agency (PSA) in Washington, D.C., which is responsible for gathering information about arrested defendants and making decisions regarding pre-trial release, offers promising data on one possible solution: unbiased risk assessments to allow for the release of more defendants on their own recognizance, or written promise. Releasing 80 percent of defendants with only the accountability of their own recognizance, the PSA has seen 90 percent of these defendants return for trial as promised. And this strategy poses low risk to public safety, as the PSA calculates each defendant’s threat and risk of flight before releasing them. This is based on a variety of factors, which do not include race. A system of unbiased risk assessments avoids the issues that cash bail creates. The unbiased aspect of the assessments ensures defendants are examined without the effect of unfair biases and preconditioned notions. The risk assessment allows public safety to be upheld and dangerous defendants to still be detained. Unbiased risk assessments prevent detrimental impacts to those who would otherwise be detained pre-trial, and decrease costs of jailing for taxpayers, while upholding the principles of the Constitution.
If the United States truly stands: “with Liberty and Justice for all,” it should by no means be the world leader in incarceration. While the elimination of the cash bail system alone does not cover the full extent of the criminal justice system’s shortcomings, it is an important step toward equality, while maintaining safety, and addressing the structural problem of mass incarceration.