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)