The problem with the U.S. bail system Camilo Ramirez
Since 2000, the annual number of people
convicted of crimes in the United States
has stayed steady, but the average number
of people in jail each year has shot up.
How can that be?
The answer lies in the bail system—
which isn’t doing
what it was intended to do.
The term “bail” refers to the release
of people awaiting trial
on condition that they return
to court to face charges.
Countries around the world
use many variations of bail,
and some don’t use it at all.
The U.S. bail system relies primarily
on what’s called cash bail,
which was supposed to work like this:
When a person was accused of a crime,
the judge would set
a reasonable price for bail.
The accused would pay this fee
in order to be released from jail
until the court reached
a verdict on the case.
Once the case ended,
whether found guilty or innocent,
they’d get the bail money back
if they made all their court appearances.
The rationale behind this system
is that under U.S. law,
people are presumed innocent
until proven guilty—
so someone accused of a crime
should not be imprisoned
unless they’ve been convicted of a crime.
But today, the bail system in the U.S.
doesn’t honor the presumption
of innocence.
Instead, it subverts peoples’ rights
and causes serious harm,
particularly to people
in low-income communities
and communities of color.
A key reason why is the cost of bail.
In order for cash bail
to work as intended,
the price has to be affordable
for the accused.
The cost of bail wasn’t meant to reflect
the likelihood of someone’s guilt—
when bail is set, the court
has not reviewed evidence.
Under exceptional circumstances,
such as charges of very serious crimes,
judges could deny bail
and jail the accused before their trial.
Judges were supposed to exercise
this power very rarely,
and could come under scrutiny
for using it too often.
Setting unaffordably high bail
became a second path
to denying people pretrial release.
Judges' personal discretion
and prejudices played a huge role
in who they chose to detain this way.
Bail amounts climbed higher and higher,
and more and more defendants couldn’t pay—
so they stayed in jail.
By the late 19th century,
these circumstances led to the rise
of commercial bail bond companies.
They pay a defendant’s bail, in exchange
for a hefty fee the company keeps.
Today, the median bail is $10,000—
a prohibitively high price
for almost half of Americans,
and as many as nine out of ten defendants.
If the defendant can’t pay,
they may apply for a loan
from a commercial bail bond company.
It’s completely up to the company
to decide whose bail they’ll pay.
They choose defendants they think
will pay them back,
turning a profit of about
$2 billion each year.
In fact, in the past 20 years,
pretrial detention has been the main
driver of jail growth in America.
Every year, hundreds of thousands
of people
who can’t afford bail or secure a loan
stay in jail until their case is resolved.
This injustice disproportionately affects
Americans who are Black and Latino,
for whom judges often set higher bail
than for white people accused
of the same offenses.
Unaffordable bail puts even innocent
defendants in an impossible position.
Some end up pleading guilty to crimes
they did not commit.
For minor offenses, the prosecution
may offer a deal that credits time
already spent in jail toward
the accused’s sentence
if they plead guilty.
Often, the time they’ve already spent in
jail is the total length of the sentence,
and they can go home immediately—
but they leave with a criminal record.
Defending their innocence, meanwhile,
can mean staying in jail indefinitely
awaiting trial—
and doesn’t guarantee
an innocent verdict.
Bail may not even be necessary
in the first place.
Washington, D.C. largely abolished
cash bail in the 1990s.
In 2017, the city released 94%
of defendants without holding bail money,
and 88% of them returned
to all their court dates.
The nonprofit organization,
The Bail Project,
provides free bail assistance to thousands
of low-income people every year,
removing the financial incentive
that bail is designed to create.
The result? People come back
to 90% of their court dates
without having any money on the line,
and those who miss their court dates
tended to
because of circumstances like child care,
work conflicts, or medical crises.
Studies have also found that holding
people in jail before trial,
often because they cannot
afford cash bail,
actually increases the likelihood
of rearrests and reoffending.
The damage of incarcerating people
before their trials
extends to entire communities
and can harm families for generations.
People who are incarcerated
can lose their livelihoods, homes,
and access to essential services—
all before they’ve been convicted
of a crime.
It’s also incredibly expensive:
American taxpayers spend
nearly $14 billion every year
incarcerating people
who are legally presumed innocent.
This undermines the promise
of equal justice under the law,
regardless of race or wealth.
The issues surrounding cash bail
are symptomatic of societal problems,
like structural racism and over-reliance
on incarceration,
that need to be addressed.
In the meantime,
reformers like The Bail Project
are working to help people trapped
by cash bail
and to create a more just and humane
pretrial system for the future.