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  • ChargedCash Bail, Jail Populations, and Room for Improvement
  • Jenn Boggs (bio) and Alexander Brock
Keywords

cash bail, community bail funds, jail, prison, trial, detention, Black Lives Matter, Mapping

In 1987 the Supreme Court ruled that in the United States, “liberty is the norm, and detention prior to trial or without trial is the carefully limited exception,” reifying the notion that everyone is innocent until proven guilty. The cash-bail system, however—utilized in the majority of jurisdictions across the country to determine which defendants will remain incarcerated until trial—has created a situation in which pretrial liberty is contingent on economic, instead of legal, status. In other words, being jailed because of an inability to pay, despite being legally innocent.

According to the Prison Policy Initiative, pretrial detention accounts for all net growth in the jail population between 1983 and 2016. Proponents of requiring financial collateral for pretrial release argue that it helps ensure a defendant’s future appearance for all court dates and thereby improves accountability. But there is a growing recognition among states, researchers, and policymakers that the use of monetary bail is an unjustifiable infringement of a person’s rights that has resulted in mass overincarceration, is racially prejudiced, and is costly to the taxpayer. Moreover, its aims are achievable through other means.


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CASH-BAIL SYSTEM

In the cash-bail system, a judge assigns a monetary amount to a defendant’s case which the defendant must pay in order to be released from jail prior to trial. That amount roughly corresponds to the severity of the alleged offense combined with the likelihood that the defendant will show up for future court dates. Should the accused make all court appearances, the money is then returned.

WHAT DOES REFORM LOOK LIKE?

Risk assessment

A pretrial-services agency uses a risk-assessment tool to produce a report that will help inform a judge’s decision about pretrial release. The report aggregates information gained through a post-arrest interview with the defendant, background records, and other data to evaluate the likelihood of the defendant voluntarily appearing for all court hearings.

Strong presumption of pretrial release

There is an initial presumption that the defendant’s release “on recognizance” is su“cient to ensure his or her appearance at future court dates. Should a judge decide that a monetary bail is necessary as a condition of the defendant’s release, the amount cannot exceed the defendant’s ability to pay it.

Strict timeliness requirements & procedural protections

For detainees, a conditional-release hearing is to be held no later than the first day of their appearance in court. The court’s decision on the issue of bail and/or conditional release is appealable.

Pretrial services

Defendants released without monetary conditions are provided with reminders about scheduled court dates by text, telephone, or email by a pretrial-services agency. The agency also will provide defendants with referrals for job training or medical treatment, should they choose to seek help.

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COMMUNITY-BAIL INITIATIVES

To combat the problem of people remaining in jail solely due to an inability to pay, grassroots initiatives have emerged throughout the country that pool community resources and donations to help accused individuals make bail. These organizations exist for both criminal law and immigration courts.

WASHINGTON, DC, CASE STUDY

Washington, DC, has been at the forefront of innovations in pretrial reform since the 1960s,resulting in 94% of defendants being released pretrial, 88% of whom remained arrest-free.


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Jenn Boggs

Jamelle Bouie is an opinion columnist for the New York Times and a political analyst for CBS News. His work has appeared in multiple publications including the American Prospect, the Nation, the Washington Post, and the New Yorker.

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