How Bail Reform Can Protect Protestors and Address System Injustices
As protests continue over the killings of George Floyd, Breonna Taylor, Tony McDade, and many others, people and organizations across the country are sharing resources to support protestors and combat anti-Black racism and police brutality.
One such resource, bail funds, are gaining attention as an important way to provide relief to protestors detained in jails, with the Minnesota Freedom Fund reportedly raising $20 million in the four days after George Floyd was killed.
As people around the world donate to state and local bail funds, it’s critical to understand bail systems, research findings about their effects, state and local efforts to reform them, and underlying system injustices that bail funds seek to mitigate.
How the cash bail system works
In the United States, many jurisdictions rely on cash bail to guarantee a person will appear in court if released back to their community. Many systems give judges discretion to set vastly different bail amounts for the same crime.
If a person cannot afford their bail, they may be forced to rely on a bail bond company (also referred to as a bondsman) to post bail in exchange for a nonrefundable portion of the bail amount (typically 10 to 15 percent) as well as collateral property that would be forfeited if they fail to appear in court. The bail bond industry nets about $2 billion a year in profit, leading some to label its practices as predatory.
Bail funds are another avenue to pretrial release. Bail funds are typically local and community-driven organizations (though national bail funds exist) that pay bail for those who cannot afford it to gain pretrial release.
The cash bail system’s unjust effects
People detained pretrial—many of whom are only held because they cannot afford bail—make up more than 70 percent of the US jail population.
Cash bail systems and pretrial detention have disparate racial and economic impacts. Bail is systematically set higher for Black and Latinx people than for white people with similar criminal histories and charges. On average, bail amounts are 35 percent higher for Black men and 19 percent higher for Latino men than for white men for similar crimes.
Given these system biases and the well-documented racial wealth gap, people of color, and Black people in particular, face intersecting racial and socioeconomic inequities in bail systems.
Cash bail criminalizes poverty. People who cannot afford to pay bail can either forfeit a bond premium to secure bail or await their trial in jail. Those with no financial choice but to await trial in jail often experience negative case outcomes. People detained pretrial are four times more likely to be sentenced to prison than people who are released and are more likely to plead guilty to a lower charge to avoid spending additional time in jail.
On top of these repercussions, pretrial detention can cause psychological trauma, as demonstrated in the case of Kalief Browder, who died by suicide after he was held pretrial for three years at Rikers Island, two of which were spent in solitary confinement.
Pretrial detention can also have negative effects on employment and families. And now, in light of the COVID-19 pandemic and its disproportionate effects on Black and Latinx people, unnecessary pretrial detention is especially dangerous to the health of people of color held in jails.
Bail reform in action
In recent years, several jurisdictions have enacted bail reform legislation with varying degrees of success.
In 2018, Philadelphia officials eliminated cash bail for most low-level crimes, which led to the release of an additional 1,750 people throughout the year with no increase in recidivism. Importantly, a study found no evidence that eliminating cash bail in Philadelphia led to increased failure-to-appear or crime rates.
In 2016, New Jersey’s state legislature in effect eliminated cash bail and replaced it with a risk-based system. Risk-based systems use risk assessment tools to ostensibly predict the likelihood of particular outcomes—in this case, rearrest or failure to appear in court. The next year, New Jersey reported a 20 percent decrease in its jail population and an average court appearance rate of 89 percent (PDF).
Despite these promising statistics, civil rights advocates are wary of the widespread use of pretrial risk assessments, arguing that such tools, which rely on factors such as criminal history, intensify preexisting racial disparities in the criminal justice system. Some argue that bail reform will inevitably fall short of intended goals and instead support bail reform as a precursor for the abolition of pretrial detention altogether.
In contrast, jurisdictions like New York state, which passed sweeping bail reform legislation in 2019, have walked back reforms because of political and public pushback. A reported uptick in crime—which has been disputed by legal advocates—recently led to an expansion in the number of serious crimes eligible for cash bail.
As people are detained for protesting the harms the criminal justice system inflicts on Black people and as bail funds garner renewed public interest, policymakers, practitioners, and all those donating to bail funds must consider the successes and shortcomings of previous efforts at bail reform. Stakeholders interested in eliminating cash bail should examine the outcomes of bail reform attempts and develop policies that deliberately address disparities in bail and pretrial detention.
We are in a moment when people are paying attention to bail systems and the justice system overall, and this moment presents an important opportunity to pursue cash bail reform efforts seeking to correct the system’s racial and economic injustices.
Protesters and police clash during a Black Lives Matter march in East Meadow, New York on June 12, 2020. (Photo by Alejandra Villa Loarca/Newsday RM via Getty Images)