Why Cash Bail Needs to End

This commentary was written by  Cherise Fanno Burdeen  for The Crime Report (thecrimereport.org), like Injustice Watch a member of the Institute for Nonprofit News.

Americans love money. We have an almost magical belief in its ability to make things better.

That may explain why for so many years we’ve placed our trust in money bail—the practice of making people pay money to be released from jail while awaiting their day in court.

We believe it will make people behave. Yet a growing body of research shows that this practice doesn’t achieve its purpose, and that people show up in court at the same high rates whether they pay money up front or not. All money bail guarantees is that defendants with money can go home no matter how dangerous they might be, while poor people (no matter how little danger they present) stay in jail unnecessarily—at tremendous cost to themselves and their communities, to taxpayers and, paradoxically, to public safety.

The nation’s highest court has already held that release before trial should be the norm and detention should be the carefully limited exception. How, without money bail, would we decide who qualifies for this “carefully limited exception” and must be detained while criminal charges are being resolved?

The answer: Pretrial risk assessment.

It is part of the process that helps courts and judges determine who presents enough risk of danger to community safety or of failing to appear in court that they qualify to be admitted to jail before trial.

And because as little as three days behind bars has been shown to make someone more likely to be rearrested later, it actually makes us all less safe.

The story of Maurice Walker, the man at the heart of a federal class action lawsuit against the City of Calhoun, Georgia, illustrates the flaws of money bail. Arrested as “a pedestrian under the influence,” Walker spent six days behind bars because he couldn’t afford $160 bail. That amount was not based on a calculated risk that he might flee from justice or commit crime in the community.

Neither did it account for his extremely limited fixed income or his serious mental health issues. And, of course, it did nothing to make the city of Calhoun safer, or to connect Walker with services or treatment.

Like similar cases successfully brought against other counties and cities, Walker’s lawsuit contends that detaining people like him simply because they cannot afford to post money bail violates the Equal Protection Clause of the U.S. Constitution, which requires that all people be treated the same before the law.

Pretrial risk assessment is a straightforward and commonsense alternative to money bail.

Pretrial risk assessment tools consider a number of factors that have been shown to be accurate predictors of pretrial failure—a history of missed court dates, for example, or whether the current charge is for a violent offense. They then weigh these factors to help courts make informed decisions about who should be admitted to jail. It is a far superior process than relying only on fixed bail schedules or individual judge’s intuition, experience—and in some cases, bias.

The possibility that courts might currently be making biased decisions is real—and troubling.

Money bail disproportionately impacts people of color, who are more likely to become trapped in the criminal justice system because they cannot afford to pay their way out. Moreover, bail amounts assigned to African-American men are, on average, three times higher than those for white men with similar backgrounds. In contrast, the analysis of a pretrial risk assessment tool developed by the Laura and John Arnold Foundation showed scores for Black and white defendants that were virtually identical.

Pretrial risk assessment is already being used across the country—and it’s working. Kentucky, for example, assesses the risk of nearly every arrested individual, and in the past five years it has reduced its pretrial detention rate from 32% to 25% at the same time the rate of crimes committed by people on pretrial release fell by 15%.

Washington, DC has virtually eliminated money from its pretrial system and detains only 12% of all arrested people. Combining a robust pretrial risk assessment program with community supervision for medium-risk individuals has led to a court appearance rate of 88% and a public safety rate (staying arrest-free before trial) of 89% in DC.

There is strong support for replacing money bail with risk-based pretrial practice, driven by a growing awareness that what we’ve been doing—using money bail and guesswork—isn’t working. Justice system leaders, including chief justices, law enforcement and legislators, understand this.

And the general public does, too. In recent polling, 70 percent of likely voters agreed that risk, not money, should determine who we keep behind bars after arrest and before trial. This support is high across different political and racial groups.

Still, some are skeptical about using a formula to inform court decisions about whether an individual should be released or jailed before trial. That’s why all pretrial risk assessment systems must be fully transparent about what factors they measure and how the results are used. Decisions about people’s liberty should be made in open court, on the record, and should be defensible based on the facts at hand.

Our country is in the midst of an unprecedented conversation about criminal justice. Much of that debate focuses on harsh sentencing laws and pardons—solutions that come after the fact. Fixing the front end of the system—by ensuring that fewer people are jailed unnecessarily before trial and those who truly pose a danger are detained—will have the greatest impact on problems further on.

And the first step in solving our pretrial challenges is to shift from money bail to evidence-based pretrial risk assessment.

Burdeen is the chief executive officer of the Pretrial Justice Institute, a national organization working to advance safe, fair, and effective pretrial justice.