Payton Deeney

Professor Babcock
ENG 138T
15 April 2021

An Outdated System: The Elimination of Cash Bail

Introduction

Bail is a sum allotted for the release of a person awaiting conviction, and is put in place

in order to assure their appearance in court. The two most prominent forms of money bail

include surety bail and cash bail1. Surety bail involves the practice wherein the defendant pays a

percentage of the amount to a commercial bail agent, who keeps this percentage and agrees to

pay the rest. The agent often requests collateral for the entire bail price either from the defendant

or the defendant’s family. If the defendant does not appear in court, this collateral is used to pay

the full amount. Cash bail, on the other hand, is paid directly to the court and reimbursed only on

the condition that the defendant shows up to each court date. The United States is among the

only two countries to have a commercialized bond enterprise. The nation’s current system of bail

requires reform, specifically the elimination of money bail for nonviolent charges and

misdemeanors as well as the implementation of pretrial services and risk assessment tools.

History of Cash Bail

The practice of bond originated in colonial era England, wherein people awaiting trial

who were permitted release could employ “personal sureties” in the form of money from their

connections (typically friends or family) who agreed to pay a fixed amount if the defendant did

not attend their court date2. As early as the 1960’s, the effectiveness of this system in America

1
Wykstra, Stephanie. “Bail Reform, Which Could Save Millions of Innocent People from Jail, Explained.”
Vox, 17 Oct. 2018,
[Link]/future-perfect/2018/10/17/17955306/bail-reform-criminal-justice-inequality.
2
Ibid.
was called into question. In 1961, a research study performed by Kerbert Sturz and funded by

Louis Schewitzer led to the formation of Vera Foundation3, an organization with the intent to

investigate whether or not money bail served its intended purpose. From this organization the

Manhattan Bail Project was born. This experiment consisted of an experimental group, wherein a

judge would receive feedback from the Vera Foundation in order to determine if a defendant

received bail, and a control group, wherein judges made the decision with no third party advice.

The Vera Foundation’s recommendations took into account many factors, including the

defendant’s history of employment, previous criminal records (if applicable), familiar relations,

and interviews with the accused individuals4. The results that unfolded over the three year

experiment were notable. Of the more than 3,500 people that were allowed release without bail,

only a mere 1.6% did not make an appearance at their court meeting. The percentage of people

allowed release in the control group and experimental group was also significant, with only 14%

of defendants being released in the control group in contrast to 60% in the experimental group.

Furthermore, individuals who were allowed release were 250% less likely to be convicted5.

The evident results from this experiment disproving the effectiveness of money bail

proved to be highly influential. President Johnson cited this research in defense of the 1966 Bail

Reform Act, and by 1970 some level of bail reform had been put in place in every state across

the nation6. The Bail Reform Act did not entirely eliminate money bail, but rather set standards

in deciding bail amounts. However, the progress seen in this era was surmounted by the Bail

Reform Act of 1984, which was motivated by a rising rate of crime. Under this act, judges could

permit the containment of people deemed a threat of either flight risk or hazardous to public
3
Kohler, Scott. “Vera Institute of Justice: Manhattan Bail Project.” Duke University Sanford School of
Public Policy, [Link]/sites/default/files/descriptive/manhattan_bail_project.pdf. Accessed
4 Aug. 2021.
4
Ibid.
5
Ibid.
6
Ibid.
safety. In the case of the United States v. Salerno, it was decided that the containment of an

individual before conviction was the “carefully limited exception” to the country’s principle of

liberty7.

Impacts of Cash Bail

The status of money bail in the United

States perpetuates socio-economic

disparities, contributes to

overcrowding in jails and resulting

stresses on jail employees, and calls

for unnecessarily inflated funding.

Robert F. Kennedy, a former United

States Attorney General, effectively

summed up the concept of bail’s

effect on socio-economic inequalities

when he stated “The rich man and the poor man do not receive equal justice in our courts… And

in no area is this more evident than in the matter of bail.”8 In short, money bail illegalizes

poverty. Studies in Philadelphia found that from the years of 2008 to 2013, 40% of defendants

that received a bail valued at or less than $500 remained in detention centers for at least three

days due to inability to pay9. Some, however, spend time behind bars due to much lower bail

costs, some as small as $250. In many cases, economically disadvantaged defendants agree to

plea bargains just to be released- regardless of their innocence- therefore elucidating the fact that

7
“UNITED STATES, Petitioner v. Anthony SALERNO and Vincent Cafaro.” Legal Information Institute,
[Link]/supremecourt/text/481/739. Accessed 12 Apr. 2021.
8
Wykstra.
9
Ibid.
impoverished people have a substantially higher possibility of being convicted10. On the average

day, upwards of half a million unconvicted individuals are behind bars, largely due to inability to

pay bail11. This in turn only exacerbates the issue of overpopulation in jails, which then leads to

both poor conditions inside facilities and added strains on jail personnel. While awaiting trial, an

individual may be subjected to insufficient health care and a potentially unsafe environment12.

The story of Kalief Browder exemplifies the detrimental effects these circumstances can inflict

on an individual.

Kalief Browder was just short of seventeen years old when he began to undergo the trials

and tribulations of the criminal justice system. He had been previously convicted of grand

larceny and was out on parole, when one day he was arrested on the street as a suspect in a

robbery. He cooperated with the police, who then took him to the station despite his assertion

that he had not been involved. The bail was set at 3,000 dollars, and hence he was unable to

secure bail for release. He was sent to Robert N. Davoren Center, a facility notorious for

violence, corrupt guards, and a history of gang activity13. His trial was slow paced, and was

pushed back countless times on account of the court. Browder recalled many altercations with

gang members at the facility, who would systematically assault other residents. He even

mentioned a time where during an interrogation, the guard members assaulted residents, going

down the line and punching them in the face. The process of trial for Browder took three years,

and in this time he was subject to solitary confinement for extended periods of time and even

attempted to take his own life. His case was finally dismissed- with no trial- when the man who

10
Yoffe, Emily. “Innocence Is Irrelevant in the Age of the Plea Bargain.” The Atlantic, 7 Aug. 2017,
[Link]/magazine/archive/2017/09/innocence-is-irrelevant/534171.
11
Sawyer, Wendy, and Peter Wagner. “Mass Incarceration: The Whole Pie 2020.” Prison Policy Initiative,
24 Mar. 2020, [Link]/reports/[Link].
12
Wykstra.
13
Gonnerman, Jennifer. “Three Years on Rikers Without Trial.” The New Yorker, 9 July 2019,
[Link]/magazine/2014/10/06/before-the-law.
accused him of theft moved to Mexico. In an interview after he was released, Browder said the

following: “I feel like I’m still in jail, because I’m still feeling the side effects of what happened

in there”14. The ordeal took such a toll on

Browder that in 2015, two years after he was

released, Browder committed suicide.

While Browder’s circumstance was the

outcome of three years spent in jail awaiting

conviction, the effects of incarceration can

negatively impact an individual’s life in much

less time. Time spent in detention while awaiting

trial can severely disrupt a person’s life,

including the maintenance of their family,

occupation, and involvement in their

community15. Additionally, the bail system in the United States has had disproportionate effects

on racial minorities. African Americans are five times more likely than white individuals and

three times more likely than those of Hispanic descent to be detained under the circumstances of

affording bail16. This, in addition to the racial discrepancies among incarceration rates, has had

devastating ramifications for minority populations.

Past Implementations of Bail Reform

The call for bail reform is a timely issue, and one that has already begun to gain

momentum across the country. Several states including Alaska, New Jersey, New York, Georgia,

14
Ibid.
15
Calaway, Wendy, and Jennifer Kinsley. “Rethinking Bail Reform.” Richmond Law Review, 6 Apr. 2018,
[Link]/files/2018/10/[Link].
16
Ibid.
California, and Vermont as well as Washington D.C have already implemented (or attempted to

implement) bail reform policies17. Washington D.C began to limit cash bail as early as the

1990’s. Truman Morrison, a former Superior Court judge for D.C, served for 40 years and was a

strong advocate for bail reform18. During one year of his service, the court released 94% of all

detained people without utilizing cash bail. The vast majority, roughly 88%, showed up to every

court date. Among that 88%, 86% were never incarcerated again. Furthermore, less than 2% of

the released population went on to commit a violent crime19.

New Jersey’s bail reform legislature arrived significantly later, with a 2017 law that

significantly reduced monetary bail20. In a few years, the incarceration rate for the state dropped

an impressive 44%21. Offenders convicted of violent crimes remained in detention centers, and

release for the remaining defendants was calculated in regards to a number of factors, among

which included age, previous charges, and missed court dates. Along with the implementation of

this policy, crime in the state continued to decrease.

Some states, such as Georgia and Vermont, did not implement bail reform as

comprehensive as New Jersey and D.C, but still had successful outcomes. Vermont’s reform, in

the form of a 2018 bill, included a $200 maximum limit for most misdemeanors22. It was also

determined that it was the judge’s responsibility to make appropriate decisions in choosing bail

amounts regarding the individual’s financial abilities. Georgia’s hiatus on monetary bail applied

17
Lockwood, Beatrix, and Annaliese Griffin. “The System: The State of Bail Reform.” The Marshall
Project, 30 Oct. 2020, [Link]/2020/10/30/the-state-of-bail-reform.
18
Block, Melissa. “What Changed After D.C. Ended Cash Bail.” National Public Radio, National Public
Radio, 2 Sept. 2018, [Link]/2018/09/02/644085158/what-changed-after-d-c-ended-cash-bail.
19
Ibid.
20
Romer, Keith, and Joel Rose. “New Jersey Bails Out.” National Public Radio, National Public Radio, 29
Aug. 2018, [Link]
21
Lockwood et al.
22
Ibid.
to those accused of city ordinance violations23. Similarly to New Jersey, they continued to assign

bail for people charged with violent crimes, as well as people who failed to appear in court and

individuals with previous charges. Unsurprisingly, it was found that this had a far less negative

impact on the disruption of the households and occupations of accused persons.

Of course, not all bail reform attempts were successful. For example, California

attempted to pass a 2018 bill similar to the ones mentioned previously, however it was not

enacted due to the belief that it allotted too much responsibility to county judges24. New York, on

the other hand, successfully instituted a 2019 bill to reduce the use of money bail for nonviolent

charges. After an increase in crime rates, however, the bill was repealed just three months later25.

Recommendations for Reform

Perhaps the best exemplar of successful bail reform is the state of Alaska. The state

directly combatted the issue of overcrowding in jails by passing a 2018 bill that significantly

reduced usage of money bail26. People eligible for bail-free release included those accused of

class C felonies and nonviolent misdemeanors. The system Alaska uses in replacement of the

cash bail system is the same one implemented by the other states that have enacted bail reform,

which is a risk assessment program. With this system, defendants are assigned a score that

determines if they are high or low risk depending on the estimated probability that they will

appear for their hearing and their chances of being incarcerated again if granted release. This

system decides if the defendant will be assigned bail, and if necessary, determines the amount27.

Individuals accused of violent crimes automatically are not eligible for bail-free release, and

23
“News List | Atlanta, GA.” City of Atlanta Georgia, 6 Feb. 2018,
[Link]/Home/Components/News/News/11448/1338?backlist=%2525252F.
24
Lockwood et al.
25
Ibid.
26
“Alaska Becomes Latest State to Enact Bail Reform.” Equal Justice Initiative, 17 Jan. 2018,
[Link]/news/alaska-enacts-bail-reform.
27
Ibid.
nonviolent offenders (including those charged with class C felonies and misdemeanors as

mentioned previously) with high risk scores additionally do not receive the free bail option. In

addition to release, there is also a system in place to assure the defendants are monitored for both

their safety as well as the public’s. These options vary from officer check-ins, alcohol and drug

testing, and electronic surveillance28. Another progressive element of Alaska’s system is that it

provides low-risk individuals with the opportunity to seek treatment. In this way, they are not

completely alienated from their community in a way that may very negatively impact their

future. These various programs are paid for by the state- however, this does not add to an inflated

budget. In fact, with bail reform, Alaska is saving a large amount of money in funding. After the

elimination of cash bail, the number of jailed people in Alaska diminished by 13%. Not only did

this alleviate the issue of overcrowding, but it is also projected to save the state an estimated

$380 million29. The state budgeted $98 million towards the aforementioned pretrial services,

victim restitution and assistance, violence prevention programs, as well as drug, alcohol, and

mental health treatment30. Even with this variety of helpful and progressive programs, Alaska

still saves budgeting that would have been allocated to inmate maintenance costs.

Proposed Option

The efficiency of Alaska’s system showcases how successful bail reform may be

implemented. The elimination of cash bail on the national level would require many of the same

strategies utilized by Alaska, such as risk assessment programs, pretrial services, and treatment

options. Pretrial services are intended to assure the defendant is following the terms of their

release and include scheduled meetings with officers, electronic surveillance, testing for drugs or

alcohol, and even text court reminders.

28
Ibid.
29
Ibid.
30
Ibid.
Opposition to Bail Reform

Adversaries of money bail reform oppose the implementation of risk assessment. A main

concern is that it will continue to enable racial disparities, similar to the current bail system. As

expressed by Human Rights Watch, risk assessment replaces “one harmful system with

another”31. In past occurrences, there appears to be racial discrepancies among individuals

allowed free bail, however this is most likely due to the

pre-existing racial stratifications concerning incarceration

rates, not the risk assessment system in itself. Judge Truman

Morrison addresses the concerns of racial bias in risk

assessment: “We need to take great care to be refining our use

of risk assessments as much as we can. But the alternative is

to do it the way we've always done it, which is to rely on

judicial hunch and money, which, of course, makes no

sense.32” Additionally, the practice of risk assessment

provides a concrete set of parameters in deciding who is

released, rather than just relying on a judge’s individual opinion. The current system is incredibly

unreliable. In a New York City study, the probability of receiving cash bail ranges all the way

from 30-69% for felonies and 2-26% for misdemeanors33. Risk assessment provides a standard

system in determining these decisions.

Another of the most common worries among opposers is that decreasing bail usage will

lead to increased levels of crime. However, a study found that the “high risk group”, who would

31
Wykstra.
32
Block.
33
Wykstra.
already be withheld from bail, is only 8% likely to be incarcerated for an additional violent crime

within the next 6 months upon release34.

Implementation and Communication

The current state of bail reform is occurring individually at the state level. Legislation at

the national level, however, would make implementation much more efficient. Bail reform

established at the federal level would provide regulations for states to follow in modifying their

justice systems. In order to be successful, national legislation should require mandatory state

funding towards risk assessment development and the aforementioned pretrial services. In order

for this to occur, the issue would have to be proposed by a representative and then approved by a

majority vote in both the House of Representatives and the Senate. If there is difficulty in getting

the states to adopt reform, incentives could be offered to encourage implementation. Success

would be visible in the form of drastic reductions in jail population and a majority of nonviolent,

low risk offenders being offered free bail.

Communication

In order for such a bill to be brought to the attention of Congress, it would need to

continue to gain public support and media attention. Funding towards new or preexisting bail

organizations would assist this goal.

Significance

Ultimately the call for bail reform is a timely issue, which is elucidated by the amount of

public support it has garnered recently. This is reflected by the formation of organizations, such

as The Bail Project and National bailout, who prioritize bail reform and utilize donations to bail

individuals out of jail. There has been a drastic increase in public funds for bail-oriented

34
Ibid.
organizations since the police killings of Breonna Taylor and George Floyd last year35. The

National Bail Fund Network, for instance, has received $80 millions in funds in this time period.

Minnesota Freedom Fund, a bail fund organization, raised $35 million in the span of just two

weeks. This increase of public advocacy and awareness towards the issue demonstrates the

growing support and need for bail reform.

The elimination of cash bail by means of risk assessment tools, pretrial services, and

treatment options would be extremely beneficial for the country, at both the individual and

institutional level. Less crowding in jails would lessen stresses on jail staff and improve

conditions in facilities, and a smaller incarcerated population would in turn decrease the amount

of funding required by the state. In addition, significantly less people would be forced to put their

livelihoods on pause awaiting trial due to an inability to pay. Fundamentally, this would lessen

the promotion of socio-economic disparities caused by the current system, ultimately abolishing

the penalization of poverty as a consequence of cash bail. This would be a small, but significant

step in tackling the vast social class polarization of the United States, and serve as a precedent

for other progressive developments to be made.

35
Murphy, By Jessica. “Billions Have Been Raised for Racial Equity Groups - What Comes Next?” BBC
News, 30 July 2020, [Link]/news/world-us-canada-53284611.
 Bibliography

“Alaska Becomes Latest State to Enact Bail Reform.” Equal Justice Initiative, 17 Jan.
2018, [Link]/news/alaska-enacts-bail-reform.

Block, Melissa. “What Changed After D.C. Ended Cash Bail.” National Public Radio,
National Public Radio, 2 Sept. 2018,
[Link]/2018/09/02/644085158/what-changed-after-d-c-ended-cash-bail.

Calaway, Wendy, and Jennifer Kinsley. “Rethinking Bail Reform.” Richmond Law
Review, 6 Apr. 2018, [Link]/files/2018/10/[Link].

Gonnerman, Jennifer. “Three Years on Rikers Without Trial.” The New Yorker, 9 July
2019, [Link]/magazine/2014/10/06/before-the-law.

Kohler, Scott. “Vera Institute of Justice: Manhattan Bail Project.” Duke University
Sanford School of Public Policy,
[Link]/sites/default/files/descriptive/manhattan_bail_project.pdf.
Accessed 4 Aug. 2021.

Lockwood, Beatrix, and Annaliese Griffin. “The System: The State of Bail Reform.” The
Marshall Project, 30 Oct. 2020,
[Link]/2020/10/30/the-state-of-bail-reform.

Murphy, By Jessica. “Billions Have Been Raised for Racial Equity Groups - What Comes
Next?” BBC News, 30 July 2020,
[Link]/news/world-us-canada-53284611.

“News List | Atlanta, GA.” City of Atlanta Georgia, 6 Feb. 2018,

Romer, Keith, and Joel Rose. “New Jersey Bails Out.” National Public Radio, National
Public Radio, 29 Aug. 2018,
[Link]
sey-bails-out.

Sawyer, Wendy, and Peter Wagner. “Mass Incarceration: The Whole Pie 2020.” Prison
Policy Initiative, 24 Mar. 2020, [Link]/reports/[Link].

“UNITED STATES, Petitioner v. Anthony SALERNO and Vincent Cafaro.” Legal

Wykstra, Stephanie. “Bail Reform, Which Could Save Millions of Innocent People from
Jail, Explained.” Vox, 17 Oct. 2018,
 [Link]/future-perfect/2018/10/17/17955306/bail-reform-criminal-justice-i
nequality.

Yoffe, Emily. “Innocence Is Irrelevant in the Age of the Plea Bargain.” The Atlantic, 7
Aug. 2017,
[Link]/magazine/archive/2017/09/innocence-is-irrelevant/534171.