The Unintended Consequences of Money Bail

jail & money

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” – 8 Amendment, U.S. Constitution


At the time of the US government’s founding, the right to bail, i.e. release, pretrial was deemed so important that it was included within the Bill of Rights. But the right to bail does not mean a right to money bail. Despite its widespread use, there is no evidence to suggest that money bail actually prevents crimes or failures to appear. But it is very successful in preventing middle and low-income defendants from being released, in direct opposition to the 8th amendment.

In 2013, 62 percent of county jail inmates were non-convicted individuals waiting trial, the majority of who were there because they could not pay their bail. Importantly, this injustice is most commonly committed against people of color, who are much more likely than their White counter parts to be arrested in the first place and once arrested, are more likely to be detained than their White counterparts. In a University of Minnesota study on pretrial release, White defendants were at least twice as likely to be released without any bail conditions than defendants of color, controlling for offense and number of felony charges.

Furthermore, the disparity, on average, Black men are assigned bond amounts that are 35 percent higher than White men, and Latino men are assigned bond amounts that are 19 percent higher than White men. Higher rates of justice contact, combined with higher rates of poverty and higher bail bond amounts result in vastly unequal rates of pretrial detention for people of color which has devastating unintended consequences.

Persons held in pretrial detention, even when only for a few days, are more likely to commit new crimes. Both low and medium-risk defendants are more likely to reoffend and less likely to show up at court when they are detained for any length of time pretrial.

Compared to similar defendants held less than 24 hours, Low-risk defendants held 2 to 3 days were:
40% more likely to reoffend before trial
22% more likely to fail to appear (FTA)

The effects increase the longer people are held. Defendants held 31 days or more were:
74% more likely to reoffend pretrial
31% more likely to FTA[1]

Trial outcomes are worse for those who remain detained before trial.

Compared to similar defendants who were released pretrial, those who remained in jail:
Plead guilty more often
Are convicted more often
Are sentenced to jail 4x more often & 3x longer
Are sentenced to prison 3x more often & 2x longer

When a judge deems a defendant fit for release, the imposition of money bail too often prolongs the length of pretrial detention and many times outright prevents the release of defendants.
For judges who believe a defendant can be safely released pretrial, any condition that jails defendants even for a day dramatically undermines the decision to release.

It is estimated that in 2011, county jail inmates (2/3 of which were pretrial defendants) cost taxpayers $9 billion. Even if a defendant is able to pay his or her bail amount, what is paid rarely makes up for the amount that the justice system spends on detaining that individual. For example, in 2011, Leslie Chew was arrested for stealing blankets and her release was ordered dependent on her paying $3,500. After six months she still lacked the $350 she needed to pay for a commercial bondsman to put up the full amount. That six months detention was estimated to cost over $7,000 to tax payers.

The cost to tax payers is astounding, but it is important to recognize that the brunt of the cost is felt by individuals and communities of color who suffer both the acute and long-lasting impacts of denied bail. While the disparate impact of money bail is evident, the depths of disparities are as of yet unclear. More data collection and analysis is necessary for truly understanding how unequal money bail decisions affect people and communities of color.

Sources: Rational and Transparent Bail Decision Making: Moving From a Cash-Based to a Risk-Based Process by the MacArthur Foundation (2012), Pretrial Criminal Justice Research, by the Laura and John Arnold Foundation, Unsecured Bonds: The As Effective and Most Efficient Pretrial Release Option. By Michael Jones (2013)

The Evolution of Money Bail Throughout History

jail & money 

California Supreme Court Chief Justice Tani Cantil-Sakauye recently proclaimed, We must not penalize the poor for being poor.” This belief underpins her efforts to direct resources to releasing defendants under supervision rather than money bail as well as to studying money bail on a national level. The reliance of courts on money bail and other fines to support their budgets has led to the proliferation of commercial bondsmen in most states. Bail bondsmen have become part of the landscape of the U.S. criminal justice system. As mass incarceration has come under greater scrutiny, so too has the institution of bail. Both have drastically disproportionate impacts on the poor as well as people of color.

In 2013, 62 percent of county jail inmates were non-convicted individuals waiting trial, the majority of who were there because they could not pay their bail. Black and Latinos makeup 50 percent of jail populations but only 29 percent of the U.S. population. To better understand the current racial and ethnic disparities caused by commercial bail bonds, we must understand its history and the history of bail reform. Two works by Timothy Schnacke, “The History of Bail and Pretrial Release,” and “Money as a Criminal Justice Stakeholder,” explain the history and current use of money bail, outlining the significant issues associated with this element of criminal justice.

Generally, bail is a process of release with conditions that judges give to adult defendants awaiting trial. The conditions are meant to ensure that the defendant appears at court and to prevent new crime. Money bail requires a defendant to pay a sum of money in order to be released.

Originally, money bail was developed in the Anglo-Saxon period in England (410-1066) as a means of settling disputes peacefully. The accused was required to find someone to serve as their surety who agreed to pay the settled amount to the victim if the defendant fled. No money was actually required to be released; a defendant just had to show they would be able to pay the settlement if needed. But as June Carbone said in Seeing Through the Emperor’s New Clothes: Rediscovery of Basic Principles in the Administration of Bail, The Anglo-Saxon bail process was perhaps the last entirely rational application of bail.”

For hundreds of years, friends and families served as sureties for those accused of crime. Around the 1900s, this started to change. In England as well as the United States, industrialization led to more people on the move. No longer was it as easy for people to find relatives to act as sureties, and there were even more opportunities for people to skip town rather than stick around for a verdict. In 1898, England passed the Bail Act to dispense with sureties and to find more effective methods of ensuring court appearance and preventing new crimes. The U.S. went in the opposite direction. That same year, the first commercial bondsmen started up shop in San Francisco, and the lucrative business quickly caught on across the country.

By this time, most courts required money bail amounts to be paid in-full as a condition of release. Unable to finance the full amount at one time, more and more people turned to commercial bondsmen to put up their bail amount. Bondsmen in turn expected full repayment with interest. As courts increased the use of money bail for release and the amount required for release, people relied more heavily on commercial bondsmen. It did not take long to see the gross inequalities between who was able to afford release and who was not. No longer was release a question of probable guilt and future appearance in court, instead it became only a question of money.

As Judge J. Skelly Wright of the D.C. Circuit Court stated in 1963, “Certainly the professional bondsman system…is odious at best. The effect of such a system is that the professional bondsmen hold the keys to the jail in their pockets…The court and the commissioner are relegated to the relatively unimportant chore of fixing the amount of bail.”

Guided by a desire to turn profits, rather than ensure public safety or justice, the abuse of this system became both pervasive and well-known. And those who were most seriously affected were those already disproportionately represented in the system; the impoverished and people of color. The Pretrial Justice Institute provides shocking statistics on the disparities in arrest, detention, and use of bail between White men and Black and Latino men as well as the unintended consequences.

The American Bar Association (ABA) and thought leaders in the field have condemned the use of money bail as it is not shown to improve public safety or prevent failures to appear. It has been shown to contribute to the increasing proportion of jail inmates who are not convicted of any crime (50% of jail inmates in 2000 and 62% in 2013). The ABA recommends judges return to the foundation of the justice system: assume innocence until proven guilty. Under this framework, decisions to release or detain should not be contingent on one’s ability to pay. If a defendant is safe to be released pretrial, then they should be granted that release immediately and given the minimal amount of conditions required to ensure appearance in court and no new crimes. Alternatively, if a person is not safe to be released, then they should be detained in a manner that is fully transparent and not reliant on their financial abilities.

Momentum is building around criminal justice reform. Class-action lawsuits have been filed against jurisdictions addressing the unequal use of money bail including an October filing against the city of San Francisco. In response to mounting critique against the use of money bail and similar practices, the National Center for State Courts launched a National Task Force on Fines, Fees and Bail Practices in February.

However, the move to reform the U.S. bail system is nothing new. Over hundreds of years, the abuse of money bail has resulted in reform efforts which had varying degrees of success. Yet misuse continues, and those most affected by the money bail system are disproportionately poor and people of color. Knowing the original purpose of bail and its current use we can be better prepared to understand the disastrous impact of the current system of money bail.