Cash bail doesn’t reduce crime — or make us safer

In most places in America, people have long had the right, if accused of a crime, to buy their freedom back from the government. Cash bail — the requirement that a person who has been arrested pay the court money in order to secure their own release while charges are pending — is a norm in the U.S., making us one of only two countries in the world with a for-profit bail industry.  

Among a flurry of other potentially unenforceable or unconstitutional executive actions, President Donald Trump recently issued an executive order to undo state and local bail reforms. Specifically, he is pushing back on the move by some jurisdictions to end the antiquated practice of cash bail.  Trump has framed the policy as “tough on crime,” but the data reveals cash bail to actually be dumb on crime. Eliminating cash bail improves safety and stability for both people who are arrested and the community at large, while reinstating it deepens cycles of harm that extend beyond the jailed person and their families, impacting all of us.

Of the more than five million people booked into local jails annually, 80% have not been convicted of any crime. Instead, they are being jailed  while legally innocent — accused, but unable to afford their freedom. This is because cash bail remains the dominant form of pretrial release. A judge orders a person to pay a certain amount of money, which they can have back if and when they successfully return to court. But all too often, that amount is out of reach for the people our system impacts, who are largely very poor. After all, the vast majority of people accused of crimes are so poor they are assigned public defenders for legal representation.

For about a decade of my life, I was one of those public defenders. Standing up in front of judges, I asked them to consider the fallout that would result to the community I served if they were to set unpayable cash bail for my clients. A mom separated from her infant while still nursing. A man who would miss the first day of a new job he had been trying to get for over a year. A grandson who wouldn’t be able to take his grandmother to dialysis three times a week. A retiree who urgently needed daily medication, which the jail was unlikely to provide until it took its time to re-diagnose her and re-prescribe its own medication regimen, which then may or may not work. 

Day in and day out, judges would ask “How much can she afford?” Implicit in this question was a requirement for me to put a price tag on each person I represented. One judge, upon hearing my argument that an unemployed man with severe cardiac issues should be released so he would not risk death in jail, replied, “Counselor, it’s only $300.” To my client, $300 might as well have been a million. 

These days, as a person working to improve our court system and understand what really creates safety, the lunacy of cash bail is more than apparent. Jailing people before trial doesn’t actually improve public safety. One study showed that incarcerating someone for only two to three days before making bail and being released could result in their being 40% more likely to commit new crimes than similar people held for only 24 hours before they were bailed out. Another study revealed that people who were locked up for seven days or longer were 39% more likely to be arrested for new crimes and 31% more likely to be arrested for new violent offenses than someone locked up for only a day. Both studies carefully ensured they were comparing apples to apples — the only difference between the studied groups was the length of their exposure to a jail, causing researchers to conclude that jail itself is “criminogenic.”

It makes sense. Jail causes people to lose their jobs, medicines and access to stabilizing influences like family and religious groups. It exposes people to violence almost daily, and it is inherently traumatizing. But proponents of cash bail argue that shooting ourselves in the foot on safety is necessary, because cash bail is the best way we have to ensure that people don’t evade answering accusations or flee the court’s jurisdiction. 

Bail, though, didn’t originate as a smart incentive structure to ensure court appearances. It dates from Anglo-Saxon England, prior to the Norman invasion of 1066 — from a time when many punishments for crime were monetary. Paying bail enabled someone to receive their punishment up front rather than be detained to answer for it, and then, if they were found not guilty, they could have the money back. But after the Norman invasion, William the Conqueror brought with him harsh physical punishments for crime instead of monetary recompense, dramatically increasing the incentive to flee the courts, and resulting, by the 13th century, in a formalized bail structure in England.

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When societies use bail, they eventually realize a couple of things. First, high bail can — and will — be used to jail legally innocent people indefinitely. Second, tying liberty to wealth — and allowing other people to profit off the provision of liberty, thereby creating a cottage industry of freedom loans — is morally repugnant. The time scales for this recognition can be very different, though. England established that unpayable bail should not be utilized back in 1689 before finally banning a commercial bail industry in 1976.

But here in the U.S., we wholeheartedly embraced liberty for sale, and these days, the very type of bail industry banned in England brings in $2 billion per year. By and large, this is money coming out of the pockets of poor families, and for little reason: Jurisdictions  that have banned cash bail have discovered that eliminating it does not increase crime at all. Judges are still deciding whether a person is safe to go home; the only difference is that now no one can pay their way out of that determination. What’s even better? Eliminating cash bail had other excellent downstream effects. It reduced racial disparities and allowed more people to be found not guilty of their charges, likely because they were not being ground down into false guilty pleas by endless pretrial detention. 

And even without cash bail, people did a perfectly good job returning to court. Something as simple as a phone call reminder can increase court appearances by 42%, probably because more people forget their court dates than actively evade them — a figure borne out by local community bail funds, which have reported over 90% return-to-court rates with the people they bail out at no charge and support during their court case. While using reminders of this kind, these people are also able to experience the myriad other benefits of remaining at liberty — keeping their jobs, continuing to be productive members of the community, paying their rent so they don’t lose their housing and tucking their kids into bed at night. 

This order from the president, like so many others, is a form of theater. Security theater, in this case, that prioritizes a retributive desire to see people jailed rather than a smart, data-oriented understanding that the justice system of Norman England left a lot to be desired, and that, these days, we can get better results with less carceral horror. 

In other words, without cash bail, judges still have the freedom to detain people they deem dangerous. And for the rest of the millions of people cycling through American courts, eliminating cash bail means that no matter how rich or poor they are, people can make smarter, more tailored arrangements with the court system that enable them to live their lives, not be forced to plead guilty (a huge win for due process) and still meet any obligations the court places upon them. All this would mark a strong step towards a fairer and more just society.