Why the U.S. Should End the System of Cash Bail

This January, New York will become the third state to eliminate the use of cash bail. Most people accused of misdemeanors and non-violent felonies will be automatically released until trial. The change is controversial, but nevertheless has drawn bipartisan support nationwide. 

In the United States, the monetary bail system has long been used to guarantee court appearances. As a substitute for pretrial detention, suspects are released from custody prior to their hearing, on the condition that a sum of money be deposited to the court as a surety. If the defendant makes all of their required appearances, the money is returned. In determining whether to grant a defendant bail and the amount at which it will be set, however, judicial officers are not required to consider the defendant’s income. As a result, a defendant earning minimum wage can be allotted the same bail as a millionaire. This disparity has a staggering effects: even when bail is set comparatively low, only 15% of defendants are able to afford it. 

While it was established to mitigate flight risk, the system has effectively evolved into a means for facilitating pretrial detention. This evolution undermines one of the most fundamental principles of our legal system: the presumption of innocence until proven guilty. Defendants are locked up before they’ve even had the chance to hire a defense attorney or face a jury. This has particularly detrimental consequences for lower-income defendants, who are forced to remain behind bars while those with financial means are released until trial for the same crime. 

Many low-income defendants work service-level positions where a single absence results in losing employment. Even if they manage to retain their job, they lose weeks of income while awaiting trial. Dependent relatives of defendants  — the elderly and the young — are left without caretakers. While incarcerated, defendants may encounter abuse at the hands of other inmates and guards alike, a result of the deep-seated culture of violence prevalent in most U.S. jails.

Perhaps most harrowing, however, is that the American bail system coerces innocent defendants into pleading guilty. Cash bail has become the tool used by most jurisdictions to dilute an overburdened system. In an effort to prevent overcrowding in courtrooms, prosecutors can and often do ask judges for pretrial detention as leverage in plea bargaining discussions concerning defendants with limited financial resources. Faced with the prospect of going to jail for want of bail, more than 50% of innocent defendants accept plea deals. 

Many states have begun to acknowledge the inexcusable shortcomings of the American bail system. However, they often grapple with a difficult question: how can we alleviate this systemic discrimination while still mitigating flight risk and protecting civilians from potentially dangerous suspects? Looks like New York got it right. While it may seem counterintuitive to release thousands of suspects without any tangible incentive to return for trial, evidence shows that abolishing bail works. Washington D.C. eliminated cash bail almost 20 years ago, and 94% of defendants are released before trial. Of those released, 88% make every single court appearance, and only 14% go on to be rearrested— less than 2% for violent crimes. This is because many defendants are charged with misdemeanors like petty theft, disorderly conduct, and possession of cannabis, for which the penalty for missing a court appearance is far more severe than that for the misdemeanor itself. Defendants are thus incentivized to appear before the court without any need for bail. 

Every state should follow D.C. and New York’s lead and abolish the use of cash bail. Doing so would ensure a more equitable justice system for all Americans, while, at the same time, keeping our communities safe.