When deciding who needs to remain in jail as they await trial, courts in most states should consider two things. First, is the person a danger to the community? If they are, pre-trial detention may be justified. Second, is the person a flight risk? In other words, how likely are they to show up at their next court hearing? Pre-trial detention may also be appropriate for someone who won’t.
What should not be taken into account is their wealth or lack thereof. In most states, however, a defendant’s ability to pay bail largely determines whether they will be held before trial.
That is problematic in principle and leads to pernicious results. Allowing wealthier people to be released before trial but not the poor gives the impression that some defendants are worthier than others. It violates the principle that all defendants should be considered innocent until proven guilty. It offends our sense of equal justice and fair play.
Unaffordable bail causes harm to defendants, their families and society. Research has shown that being held before trial increases the likelihood that the defendant will lose their job and housing, makes it more likely they will plead guilty even if they are factually innocent, and increases the odds that they will be arrested for a future crime. About $2 billion in bail is paid each year, disproportionately by the poor and people of color.
In January, the U.S. Commission on Civil Rights concluded that, “pretrial detention, as currently used, tears apart individual lives, families and entire communities.”
Bail reform efforts and the backlash
Over the past decade, at least 14 states and dozens of localities passed bail reform measures. The goal was generally to reduce courts’ reliance on bail and to increase the use of objective (or objective-seeming) criteria for keeping a particular individual behind bars before conviction.
These reforms were immediately met with a backlash. However, when the data came in, we learned that some jurisdictions, including Cook County, Illinois, had reduced their jail populations by over a quarter without seeing any increase in the crime rate.
Then, in 2020, the crime rate did rise. This was national, not specific to jurisdictions who had reformed their bail systems, but critics argued that the rise was a direct result of that reform.
Yet the data continues to show little effect on crime rates from reducing pre-trial incarceration. And the evidence overwhelmingly shows the harm of unjust pretrial-detention.
Nevertheless, pro-carceral forces continue to push for holding more people in jail before trial. We should demand they show hard evidence that letting people await trial at home has actually resulted in more crime before undo a decade of bail reform.
