The Dangerous Domino Effect of Not Making Bail

America’s money-bail system mostly traps low-level offenders who can’t afford their freedom while awaiting trial.

Amr Abdallah Dalsh / Reuters

America’s criminal justice system is a patchwork of local, state, and federal policies that together resemble a maze with too many entrances and too few exits. When low-risk people enter this maze after arrest, pretrial policies can ruin their lives.

One young man recently died in a New Hampshire jail after he was unable to post $100 bail. Jeffrey Pendleton, 26, was booked on March 8 on a marijuana possession charge, a misdemeanor for which a judge ordered the typical low-figure money bail. Unemployed and unable to pay, the former Burger King worker was still locked up when jail officials found him unconscious in his cell on March 13; he was declared dead hours later. Pendleton is one of many defendants, including Sandra Bland in Texas and Kalief Browder in New York, who could not afford even low bail amounts and either died in custody or committed suicide after getting out. These cases are not anomalies, but the result of a pretrial justice system designed in a way that needlessly and tragically upends the lives of unconvicted people.

Most of the 12 million jail bookings in the United States each year are for low-level, nonviolent charges. Yet far too many of these defendants remain in jail while awaiting their day in court because they cannot afford money bail. More than 60 percent of people locked up in America’s jails have not yet been to trial, and as many as nine in 10 of those people are stuck in jail because they can’t afford to post bond. They are presumed innocent until proven guilty, according to a bedrock principle of the justice system. Low-risk defendants charged with offenses like shoplifting or traffic violations often wait in jail for days, months, or even years for a trial. But that’s the reality of the current justice system, one that spends nearly $14 billion a year on pretrial confinement.

The system often seems indifferent to the damage pretrial detention can cause. This was illustrated in the Department of Justice’s Ferguson Report, which found that some court systems not only fail to give credit for time served pretrial, but also don’t even track the total time a person has spent in jail as a part of a case. When asked why this was not tracked, a member of the court staff n Ferguson told the Department of Justice, “It’s only three days anyway.”

But three days count. Even short-term incarceration can have dire consequences. People can lose their jobs, housing, even custody of their kids if they’re in jail. Studies also show pretrial detention makes otherwise low-risk defendants more likely to commit new crimes and less likely to appear in court. Spending the full pretrial detention period in jail also makes a person more likely to be sentenced to jail or prison and for a longer time—effectively adding to the problem of mass incarceration. These harms are not shouldered evenly. Blacks, Latinos, and Native Americans are twice as likely to be stuck in jail because they cannot afford money bail. This is in no small part because they face higher bail amounts on average than white defendants with similar charges. All this harm can happen even if a person is eventually found innocent or the charges are dismissed. The other side to this dysfunction is that about half of the most dangerous defendants exploit the money-bail system, often with assistance from for-profit bail bondsmen, to come up with the cash that lets them leave jail unencumbered by monitoring or supervision by the courts.

Many jurisdictions already know how to replace outdated pretrial justice policies like cash bail with risk-based systems that are safer, fairer, and more effective. The District of Columbia instituted reforms in the 1990s that effectively replaced cash bail with a pretrial risk assessment program that evaluates which defendants are too risky to be released. The highly effective program doesn’t demand cash bail; instead defendants are assessed for their likelihood to appear for their trial and potential impact on public safety. Most defendants are released on their own recognizance or under minimal supervision, and only about 15 percent of defendants are held in jail. D.C.’s model has an 89 percent court appearance rate, which is comparable to what is seen elsewhere under cash bail. The model is being adopted in a growing list of other jurisdictions, including, mostly recently, the state of New Jersey.

The damage money bail causes is serious enough—and the solutions so within reach—that pretrial reform should be a priority. States can improve the laws that govern pretrial detention, and counties can implement risk assessment and right-sized supervision for those who need it. More and more legislators, activists, and state leaders are following the example of Colorado, Kentucky, and dozens of other places that have already begun implementing smarter pretrial justice practices. There are different strategies for realizing these changes. The non-profit civil-rights organization Equal Justice Under Law has been successfully using the equal-protection clause to challenge the constitutionality of money bail. Many jurisdictions, like Connecticut, are championing bail reform through legislative action. In February, Representative Ted Lieu of California introduced the No More Money Bail Act of 2016, which would give states three years to replace money bail with risk-assessment alternatives or face the loss of federal funds for common justice programs and initiatives.

The more leaders, stakeholders, and the public become aware of ineffective and unjust laws and practices that put people like Jeffrey Pendleton in jail, the more they’ll see the need for change in their own backyards.