Bail has become the center of an increasingly heated debate across the U.S., as reforms that had been years in the making collide with a rise in violent crime in many cities since the start of the pandemic. New York and Illinois have passed legislation greatly restricting the use of so-called cash bail, a practice so widespread that the U.S. Commission on Civil Rights found in a report released Jan. 20 that 60% of defendants wind up in jail awaiting trial because they can’t afford to post bail. The burden of bail falls most heavily on the poor and minority communities, the report said. Local prosecutors in cities like New York and San Francisco are also using their discretion to rein in cash bail. But there has been pushback from mayors and police officials who say that the result has been more crime, an assertion pushed heavily by Republican candidates for governor in the November elections. It’s a debate, however, taking place without much data on the impact of relatively new policy shifts.
1. What is bail?
After a person has been arrested and processed they must appear in front of a judge at a hearing. If the charges are not dropped, the judge must decide what restrictions to place on the person as they await trial, which could be months away. The judge can order the person wait in jail, release the person on their promise to return or set bail conditions for their release. Nearly two-thirds of the U.S. jail population, or half a million people, are there awaiting trial, according to Bureau of Justice Statistics data.
2. What is cash bail?
Cash bail is the most common provision judges set. That’s when a court asks for a specific sum of money paid up front that a defendant only gets back by showing up for court. The amount is typically set at the judge’s discretion, and can vary depending on the severity of the accusations and the judge’s estimate of a defendant’s likelihood of flight. Other defendants are allowed to post bonds, meaning they are released without paying anything up front but sign a contract requiring payment if they fail to appear. From 1970 to 2015, there was a 433% increase in the number of people detained in jail, the civil rights commission’s 281-page report said.
3. What’s the case against cash bail?
The civil rights commission said it conflicts with the presumption of innocence, which it called “the bedrock of our criminal justice system.” Critics say it acts as a penalty for poverty and that low-income people of color are disproportionately impacted.
• Black defendants in state court are nearly 10 percentage points more likely to be held than their similar White counterparts, academic research shows.
• A study in Harris County, Texas, conducted prior to recent changes to bail practices there, found that people jailed while awaiting trial were 25% more likely to plead guilty than similarly situated individuals who were released.
• People who are held for even a few days, even if they eventually post bail, face consequences like losing their job or custody of their children, bail reform advocates say.
• It’s expensive for governments to hold people in jail before trial -- in New York City it costs $1,525 a day to incarcerate a single person, according to the city comptroller’s office. Nationwide, jailing such individuals costs $14 billion annually, according to an estimate from the National Partnership for Pretrial Justice, an advocacy group.
4. How have bail practices changed recently?
City and state lawmakers and prosecutors, who generally have discretion over whether to seek bail or not, have implemented changes to bail at the local level. Some efforts have narrowed the list of crimes for which cash bail can be imposed, while others have given judges new options or requirements for setting bail. Here are some examples:
• New York State: In 2019, the state eliminated cash bail and mandated release for most misdemeanors and nonviolent felonies, such as shoplifting, which make up roughly 90% of arrests. Violent felonies, sex offenses and terrorism charges were still subject to possible cash bail. In April 2022, however, a budget agreement included provisions giving judges more discretion in deciding bail if an individual was charged with causing serious harm, among other factors.
• Manhattan: District Attorney Alvin Bragg in January published new bail guidelines, urging prosecutors not to send people to jail while they await trial except in the cases of the most serious accusations.
• Illinois: In 2021, the state passed a law eliminating cash bail for all arrests. A judge, however, can decide not to pursue bail at all and has more discretion over whether to detain people for certain crimes. The law doesn’t fully take effect until 2023, though Cook County, which houses Chicago, has already begun to implement some of the changes.
• Houston: A 2019 federal decree forced the county to stop relying on cash bail for low-level misdemeanors.
• San Francisco: In 2020, District Attorney Chesa Boudin told prosecutors to stop asking for cash bail for people who weren’t viewed as public safety risks.
5. What are alternatives to cash bail?
Individuals awaiting trial can be released with conditions such as electronic monitoring, which geographically restricts their movements. Some jurisdictions also have supervised release programs which connect people with social services and require the accused to check in with case workers.
6. How do bail-reform advocates see this working?
Advocates say bail reform has allowed defendants to keep their jobs, housing and custody of their kids. They say keeping people out of crowded jails also reduces Covid risks. “What we see is wildly successful policy,” said Elissa Johnson, director of criminal justice reform advocacy and campaigns at Fwd.us, an immigration and criminal justice advocacy group.
7. What’s the backlash?
Critics say releasing people without cash bail leads to higher crime levels -- an issue that has grown in importance as violent crime rose in major U.S. cities during the pandemic. Lawmakers in New York have already rolled back some of the bail provisions, narrowing the types of crime that are ineligible for cash bail and making it easier for judges to hold people in jail. Chicago Mayor Lori Lightfoot asked for a pause on the implementation of some parts of bail reform, saying that too many people let out of jail on electronic monitoring were “violent, dangerous offenders.” New York Governor Kathy Hochul, a Democrat, had pressed for the changes agreed to in the April 2022 budget, saying they were meant to assuage New Yorkers concerned with the uptick in crime. But the state Legislature rejected her proposal to introduce a new “dangerousness” standard into bail considerations, a move that advocates said would increase the racial disparities already plaguing the criminal justice system. Hochul came under steady attack on the subject from her Republican challenger, Representative Lee Zeldin. Nationwide, Republicans spent $50 million on ads that mention crime after Labor Day, according to a Washington Post analysis, often focusing on bail reform even in states where it had not taken place.
8. What does the research show?
In many cases, the reforms are too new to make a call on how they work. The Illinois reforms haven’t even taken effect yet. New York City data from the first half of 2021 show that fewer than 1% of the 45,000 to 50,000 people who are free while awaiting trial in a given month are arrested for nonviolent or violent felonies. Data out of Harris County show fewer people are being held in jail before their trials, but that the rate of re-arrests has remained relatively stable. While opponents of bail reform often point to high profile instances of individuals who were released and committed violent crime, New York State data analyzed by The City, a nonprofit news site, found that 23% of New York City defendants freed on supervised release were rearrested on felony charges between January 2020 and June 2021.
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