WASHINGTON, DC – A national report released today by the Justice Policy Institute (JPI) shows that money bail is a failed policy that does not protect public safety, discriminates against those without financial means, and causes huge costs to taxpayers and those who are unnecessarily jailed while awaiting their day in court. 

According to Bail Fail: Why the U.S. Should End the Practice of Money for Bail, “Current policies and practices around money bail are among the primary drivers of growth in our jail populations. On any given day, 60 percent of the people in U.S. jails are not convicted but are being held as they await the resolution of their charge. This time in detention hinders them from taking care of their families, jobs and communities while overcrowding jails and creating unsustainable budgets.”  The report is the first in a three-part series of analysis on bail, for-profit bail bonding and the community impacts slated for release throughout the month of September.

U.S. Attorney General Eric Holder said last year that taxpayers spend over $9 billion in jail costs alone to keep people in pretrial detention. Meanwhile, people who are held in jail while awaiting a court date may lose their job and housing. Their children and families may suffer from not having that person in the home taking care of his or her responsibilities. People who are jailed while awaiting trial are also more likely to be found guilty and go to prison than their counterparts who are free. This is for a variety of reasons, including the impact of enduring harsh jail conditions, reduced access to defense attorneys, inability to maintain the types of social and personal responsibilities, and the reality that showing up in shackles and a jail jumpsuit creates an impression of guilt on judges and juries.

“Our constitution and laws are supposed to protect the presumption of innocence,” said Dr. Melissa Neal, author of Bail Fail and senior research associate at JPI. “Yet thousands of people are held in jails before trial because they don’t have access to money for bail. This is a waste of taxpayer money and it causes tremendous collateral consequences to those being unnecessarily incarcerated.”

The report shows how the average bail amount for people who are detained has more than doubled from $39,800 in 1992 to $89,900 in 2006. This is despite evidence that higher bail amounts are not related to more public safety and that people who are unable to afford money bail are often a lower risk of dangerousness or failure to appear in court – the two legal justifications to incarcerate someone pretrial – than those who can make bail.

 “The disproportionality in our country’s incarceration rate starts at the jailhouse door,” noted Tracy Velázquez, executive director of JPI.  “African American residents are at least five times as likely to be in jail as white residents. That some are released pretrial because they have money while others who can’t afford bail stay in jail means that economic disparities lead to justice disparities. It’s time we stop this moving walkway to prison.”

Bail Fail points to pretrial service (PTS) agencies, in particular, as effective in protecting public safety, ensuring people appear in court, reducing jail populations and their costs, as well as, leveling the playing field so that all people, regardless of income, have their rights protected. By using validated risk assessment instruments, PTS agencies can determine if a person is high, medium or low risk for dangerousness or failing to appear in court. They also can provide appropriate services that increase a person’s likelihood of pretrial success, including supervision and monitoring, referrals to drug treatment, and referrals to social service agencies to address other issues a person may be facing. 

The report notes that Washington, D.C., through effective use of its Pretrial Services Agency, has successfully moved away from money bail. In D.C., 80 percent of people charged with an offense are released on nonfinancial bail options to await resolution of their charge while 15 percent are kept in pretrial detention.  Only 5 percent are released using some form of financial bail, but there is no use of for-profit bail bondsmen services. The Pretrial Services Agency has reported that 88 percent successfully complete the pretrial process by appearing in court and not being rearrested.

“As a society, we pay a lot of money and expend many resources to maintain the current pretrial justice system as it is.” added Dr. Neal. “But the most disturbing aspect of this problem is that the people making the policies and procedures can usually afford to pay their way out of jail if they are arrested. Meanwhile, people of low-incomes, who are the majority of people interfacing with the justice system, are forced to face the pretrial justice system and all of its harsh, unfair reality. We should recognize how the pretrial justice system is driving the incarceration problem of America and commit to making meaningful, helpful changes.”

Recommendations made in Bail Fail include the following:

1.) Eliminate money bail. While eliminating the use of money bail may be challenging, it is possible to begin taking steps in this direction through the following:

  • Ban the use of for-profit commercial bail bonding companies.

Four states have banned the involvement of for-profit, private citizen businesses in the judicial process:  Kentucky, Wisconsin, Illinois, and Oregon.  Around the U.S., various jurisdictions have chosen to ban bail bondsmen even if their state has not, such as Broward County, Texas, and Philadelphia, Pennsylvania. 

2.) Amend the Bail Reform Act and policies to comply with the Equal Protection Clause.

Current practices allow for people to be treated differently within the criminal justice system on account of their financial status. Elimination of money bail is an important step toward eliminating disparities in pretrial outcomes due to financial status.

3.) Include the voices of all involved parties to ensure that reforms to the pretrial process are meaningful and effective.

As victims and their advocates provide a unique and critical understanding of the harm done and potential harm that could be done, it is important to build them into the pretrial release decision making process. 

4.) Expand community education programs, such as the Neighborhood Defendant Rights programs, that inform people in the community about how to navigate the pretrial process.  
The confusing and inherently coercive pretrial process is challenging even for those with adequate financial resources and educational background.  Understanding the process, legal rights, and what to expect could help people navigate this part of the case process more successfully. 

5.) Use citations and summons to reduce the number of people being arrested and processed through jails.

This is one solution to our jail overcrowding problem as police officers can more easily dispense citations while on the streets without needing to transport individuals to a booking facility. 

6.) Use standardized, validated risk assessments to determine who to release and how to release.

Validated risk assessments are gaining popularity as judges look for more objective ways to conduct the pretrial process and many states can now provide models for how to implement this practice. 

7.) Implement measures of pretrial detention and release services to evaluate current programming and better inform pretrial reform efforts.

In order to better understand the impact of pretrial detention and how the U.S. is performing compared to other nations, national data on pretrial detention should be gathered from jails and prisons that hold people who are going through the pretrial process.   

8.) For-profit bail bonding businesses should be required to report on pretrial outcome measures such as rates of forfeiture and failures to appear.

For-profit bail bonding companies are responsible for the release of millions of defendants each year.  At this time, there is little regulation or oversight over this crucial aspect of public safety. Only when for-profit bail bonding companies are required to report on indicators of pretrial performance and outcomes will policymakers be able to make educated decisions around the use of bail and bail bonding as opposed to non-financial release options.  

9.) Utilize pretrial supervision agencies.

Pretrial services can assist both law enforcement and judicial officers to promote citations and appropriate bail determinations by providing risk assessment and fact-finding services. 

10.) Use court notifications.

Through personally manned or computerized programs, reminding people about upcoming hearings has proven to reduce failure-to-appear rates.   

11.) Better utilize technology to improve pretrial processes. 

Pretrial reform is a daunting task for cities and counties operating on a stringent budget.  Software is now available allowing modeling of communities and interventions so that jurisdictions can test changes to their systems and estimate outcomes before actually instituting changes.

In addition to releasing three reports on the bail industry, JPI is will host several events including conference calls and panel discussions for the media and general public. For more information and to read Bail Fail: Why the U.S. Should End the Practice of Money for Bail, CLICK HERE. For additional information, please contact Zerline Hughes at 202.558.7974 x308 / 202.320.1029 or [email protected]. For a more JPI reports on the criminal justice systems, please visit our website at www.justicepolicy.org

The Justice Policy Institute, based in Washington, DC, is working to reduce the use of incarceration and the justice system and promote policies that improve the well-being of all people and communities. For more information, please visit www.justicepolicy.org.