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Bail Reform Should Include Efforts to End Pretrial Incarceration

Incremental change is important, but is not enough. We must overhaul the system to end pretrial incarceration.

Incremental change is important, but is not enough. We must overhaul the system to end pretrial incarceration.

Bail reform is a struggle at the very center of criminal legal reform, but recent proposals to reform bail have failed to effectively address the pervasive problems wrapped up in pretrial detention. Bail reform measures generally seek to reduce the number of people held on pretrial incarceration, and to dismantle the $2 billion-annual-for-profit bond industry that the cash bail system is built on. Some proposals are well-meaning but don’t go far enough. While eliminating cash bail, as some have attempted, would address the second concern, it does not sufficiently curb the practice of routinely locking up people who have not yet been convicted of any crime for months or even years. Real bail reform would address the problem of having 458,600 unconvicted people languishing in local jails.

Discretionary choices to reduce bail do not go far enough. For example, Philadelphia District Attorney Larry Krasner directed his office to stop seeking bail for a list of 25 low-level crimes. The problem is that this still leaves the ultimate decision of whether to grant bail to judges who may hesitate to release individuals for fear that they might break the law while out on bail. Moreover, Krasner’s decision is nonbinding, limited in scope and is not a permanent solution. When Philadelphia elects a new district attorney, the policy could revert entirely.

Likewise, the Pretrial Integrity and Safety Act, which was introduced to Congress by Senators Rand Paul and Kamala Harris, does not go far enough. The bill would set aside $10 million in federal grant money to incentivize states to replace bail systems that use payment of money as a condition of pretrial release in criminal cases, and it would implement a program to collect data on how people are processed. The bill is overly modest because a $10 million carrot used to incentivize states to eliminate cash bail does not address the need to dramatically reduce pretrial incarceration. For example, California’s SB 10 proposal would potentially qualify for some of this grant money, but its focus is on eliminating cash bond rather than on reducing pretrial incarceration. Moreover, SB 10 faced opposition from both the ACLU and Human Rights Watch for relying on risk algorithms that depend on racialized factors. For instance, Black people were 77 percent more likely to be categorized as more likely to commit a future violent crime by one risk assessment algorithm. Even algorithms that are race-neutral on their face often contain racial bias by considering factors like a prior arrest, even without a conviction, which Black people are significantly more likely to have for certain crimes due to the over-policing of communities of color.

Rather than develop wonkish new ideas or delay bail reform further, municipalities should simply end pretrial incarceration.

Our choice to jail roughly 458,600 unconvicted people has enormous social, political and economic costs. People locked in pretrial incarceration are punished for their poverty, held in jail for their inability to pay. They face job loss, housing loss, reputational damage and the pain of being kept away from their own families and communities when they are held for a crime for which they have not been convicted.

Moreover, the economic cost of holding people in pretrial detention are enormous. In California alone, county jails held more than 73,548 people in December 2017. Given the exorbitant expense of incarceration, this is likely to cost California millions of dollars each day. Reducing the number of people held in pretrial detention is an urgent goal that would enable us to fund programs for improving the rehabilitation of prisoners, reducing recidivism and improving reentry outcomes.

The available data support the goal of releasing more people on their own recognizance. For example, after Krasner’s office implemented its new policy, the number of prisoners released on their own recognizance rose by 23 percent in 2018. However, there was no rise in pretrial recidivism, no change in defendants’ likelihood of appearing in court when required and no increase in overall crime in 2018. So, cash bail is not necessary for society’s safety or the efficiency of court systems. Instead, it serves as a cruel and unnecessary hurdle that disproportionately harms poor people unable to afford even a small cash bail amount. Wealthy people who can afford to post money bail need not worry about spending time incarcerated because of an inability to pay; this punishment is reserved solely for those too poor to pay. Perversely, two people accused of the same crime and brought before the same judge often have vastly different experiences, with one spending time in jail and the other returning to the comfort of their home pending trial simply because of a difference in wealth.

Even a system without cash bail — like the one proposed in California’s SB 10 proposal — could face significant issues. Udi Ofer, director of the ACLU’s Campaign for Smart Justice, said that SB 10 would create broad categories of people who would be subjected to pretrial incarceration, such as those charged with a robbery, or any felony containing a threat of violence — even if no actual violence took place. Moreover, the bail decision would still rest on judges, who could make decisions based on personal biases, political risk aversion, or risk assessment algorithms that often take into consideration past arrests without a conviction and other racialized factors to justify denying bail.

Groups advocating for the end of pretrial incarceration in conjunction with bail reform have gained some recent traction. For example, the Chicago Community Bond Fund (CCBF), which is a part of the Coalition to End Money Bond, posted over half a million dollars to free more than a hundred people from jail or house arrest with electronic monitoring in only its first year of operations. CCBF also advocates for the end of money bond by pushing for legislation and assisting with class litigation efforts to challenge the constitutionality of wealth-based jailing.

Instead of pushing for incremental change, we should overhaul the system to release people prior to trial by default, rather than imposing costly and unfair hurdles.