How Does Bail Cause Convictions?

Editor’s Note: This article previously appeared in a different format as part of The Atlantic’s Notes section, retired in 2021.

Last week, I wrote a story about the economics of money bail, which focused on a new study using criminal data from the arraignment system in Philadelphia to look at whether being assigned money bail increases the probability of conviction. The findings were troubling: The researchers found that money bail increases the probability of conviction by about six percentage points.

But how does this happen? That’s something my piece didn’t address in great detail, partly due to the limits of an empirical study—which tends to look at big-picture impact rather than individual stories. One reader, a lawyer who previously worked as a public defender in Washington State, wrote in with a real-life example of how this plays out in the courts:

Reading the comments section of your piece, it appears many have no idea how bail can increase conviction rates and recidivism. But perhaps the following example (real-life examples that are common occurrences in our courts) is illuminating.

Washington State courts will often put in place bail amounts for those facing a second domestic violence (DV) charge or second DUI related offense. These don’t necessarily have to be serious allegations, since domestic violence is defined as any offense between family or household members.

For example, let’s say I get into an argument with my wife and, out of anger, smash a coffee mug on the table, breaking it. A neighbor or other household member calls law enforcement. Law enforcement responds to my neighbor’s call about the argument. I am then arrested for Malicious Mischief 3rd Degree (property damage of another worth less than $750) DV.

At my arraignment, the court will likely release me on my own recognizance if I don’t have any prior convictions. However, the court would put in place a no-contact order, which prohibits me from contacting my spouse. Violation of this order is a criminal offense and a violation of my pre-trial conditions.

My spouse, who never called law enforcement and doesn’t want to press charges, calls me and tells me she’d like me to come home.  I, not having any familiarity with the court system, think this is okay, since she initiated the contact. I return to the house. My neighbor, seeing this, wonders, “Wasn’t he arrested last night? What’s he doing home?  I’m going to call police.”

Law enforcement shows up at my house again and arrests me for violating a DV no-contact order. At my next arraignment, the judge imposes a $5,000.00 bail. I can’t afford a $5,000.00 bail.

The prosecutor, seeing I have no prior criminal history and wanting to clear his plate of the 150 cases he has that month, extends a plea offer to my attorney: Plead guilty to violating the DV no-contact order and the Malicious Mischief 3rd Degree charge will be dismissed. The sentencing recommendation will be time served. Eager to get out of jail, I jump at the chance and plead guilty.

You can see how bail and mandatory penalties just keep this cycle going, particularly if someone is not familiar with the court system or is too poor to have any reasonable alternative.

The example above lines up with what Ethan Frenchman, a public defender in Maryland and one of the co-authors of the study I wrote about, told me: “I observed what many lawyers know to be true from their practice—money bail coerces clients into pleading guilty. Poor clients would often prefer to plead guilty than sit in jail on an unaffordable money bail awaiting their day in court.”

Have you, or someone close to you, been caught up in this cycle of money bail and conviction? Tell us about it (anonymously if you prefer).