Recently, criminal justice reform advocates have pointed out a fundamental unfairness in our system. People who can afford bail are allowed to continue their lives while under criminal charges. People who cannot are held in pretrial detention, often until their criminal charges are resolved. They typically lose their jobs and housing and may even lose their kids — all before they’ve been found guilty of anything.
Being stuck in pre-trial detention is one major reason why people plead guilty to crimes they didn’t commit. Prosecutors often offer seemingly good deals to people willing to plead guilty. Often, those deals allow the person to get out of jail right away and sometimes serve no additional time.
Alternatively, if they insist on a trial, that same prosecutor may threaten additional charges and a harsh sentence if they lose.
Hasn’t it always been like that? No. According to the Vera Institute of Justice, between 1970 and 2015, the number of people being held in pre-trial detention skyrocketed by 433%.
One reason for that jump is that many local jurisdictions have begun requiring up-front bail even for low-level offenses — and that bail isn’t trivial. The average felony bail is around $10,000 to $12,000. A bail bond may allow the person to pay only 10% plus a fee, but many people can’t afford even 10% of their bail.
Many states have also adopted rules allowing judges to hold people who are considered flight risks or a danger to the community. And even though the U.S. Supreme Court has ruled that pre-trial detention should be the “carefully limited exception,” these laws have contributed to the jump in pre-trial detentions nationwide.
Pre-trial detention actually increases your chance of conviction
It’s not just that our bail system is unfair to the poor, although it demonstrably is. According to the Vera Institute, being held before trial actually increases the chance that you’ll be convicted and also increases your sentence.
It’s not entirely clear why that happens. It could be in part because people are pressured by pre-trial detention into taking plea deals. It could be that they have a harder time working with lawyers.
It could simply be that losing your job makes it almost impossible to mount an effective defense. It also makes it hard to undertake efforts to get a reduced sentence, such as agreeing to enter therapy or pay restitution.
Race and gender have also been found to directly influence the amount of bail that is set.
Recent experience in Philadelphia, where the DA eliminated cash bail on low-level offenses, revealed that defendants released without bail show up for court as often as those released only after posting cash bail upfront. More states need to ensure that cash bail isn’t used to lock up people who are constitutionally presumed innocent for months on end. It’s fundamentally unfair and punishes innocent people simply for being accused of a crime.