Over 30% of people incarcerated in US jails cannot afford bail. Bail conditions are set by a judge, often within 24 to 48 hours of a defendant’s arrest, depending on the flight risk of an individual, threat of harm to the public, and medical considerations such as substance abuse treatment.
Money bail and commercial bail bonds have been linked to the causes of mass incarceration as individuals are unable to pay bail, forcing them to stay in local and state jails while awaiting trial. Women are disproportionately affected by the bail system, as they tend to have less financial resources to pay bail and are more likely than men to have familial obligations requiring them to remain outside of jail for shorter periods of time. Certain marginalized groups, such as black women, Hispanic women, and LGBTQ+ women, experience the consequences of a money bail system even more. The bail system creates a cycle of poverty, unemployment, and criminalization, especially among women, that is costly for Americans and all levels of government. Bail reform efforts in numerous states, including New Jersey and Colorado, have been largely successful in reducing state and local pretrial detention while maintaining court appearances. Still, many states have bail laws that exacerbate mass incarceration and related factors, such as poverty. The creation of more pre- and post-charge diversion, use of non-financial pretrial release, support programs for justice professionals, and implementation risk-assessment tools would reduce jail populations and other consequences of money bail.
An estimated 458,000 people in US jails are defendants who have not been convicted. Approximately 83% are in jail because they cannot afford bail, bond companies refuse to bail them out, or the court will not allow them to post bail. Since surpassing release on recognizance (ROR)— a written promise to attend future court appearances— in 1998, bail is the most dominant method of obtaining pretrial release. Without the ability to make cash bail, individuals face pretrial detention in state and local jails.
Almost a quarter of women held behind bars have not had a trial and 60% of women in jails under local control have not been convicted of a crime and are awaiting trial. Research has pointed to the growing pretrial population as the most significant driver of the rising female incarceration rate in jails. From 1970 to 2014, the number of women in jail grew from under 8,000 to nearly 110,000, 61,000 of which are not yet convicted of a crime. The number of convicted people in jails have stayed around the same for decades, whereas unconvicted individuals have accounted for 99% of total jail growth in the last 15 years. Female incarceration rates have risen faster than male’s, and they are often behind bars because of financial obstacles to paying bail.
In 2009, the most recent study on bail price, the median bail amount for felonies was $10,000. Though there is no national data on median money bail, a report by the Bureau of Justice Statistics found that in New York City median bail was significantly lower at $2,000 in 2010. However, previous research has found that the majority of NYC defendants could not afford a bail bond set at $500. Using the most recent statistic of $10,000, the price of bail presents a significant expense for those women awaiting trial, especially for women of color.
The pre-incarceration annual income of women in prison is 29% less than incarcerated men and 42% less than non-incarcerated women. According to a 2014 study, women aged 27-42 in prison had a median income of $13,890. African-American women in jail or prison have a median annual income of $12,735 and non-incarcerated African-American women $24,255. Therefore, the payment of $10,000 bail would account for 78.5% and 41.2% of annual income, respectively. Hispanic women in prisons made a pre-incarceration median income of $11,820. Among both incarcerated males and females, black and Latino individuals have lower than half the likelihood of making bail compared to white individuals with the same bail amounts and legal characteristics. In all racial demographics, incarcerated and non-incarcerated women had lower annual income than their male counterparts. As women are less likely to have access to financial resources for bail, and even less likely if they are a minority, pretrial incarceration and its effects are even more probable. These factors highlight that bail reform is a gendered issue and racial issue.
Women are more likely to have family obligations that complicate securing bail. In a 2002 study, a majority of the people in jail who could not make bail were parents of children under 18 and two-thirds of women who could not meet bail conditions were mothers of minor children. The financial and logistical burdens of securing bail often fall disproportionately on partners and other female caregivers. These obligations put additional economic and social pressure on incarcerated women and women at risk of incarceration, especially for members of particular demographic groups, such as African-American women. Moreover, cosigners on commercial bail bonds are typically a family member, romantic partner, or close friend who formally accept the legal and financial liability for the defendant making court appearances. Women often take up this role for loved ones that are in need of bail and subject themselves to financial risk.
Pretrial detention, often caused by unaffordable bail, has negative effects on employment, housing, wealth, mental health, and physical health. The Colorado Criminal Defense Institute found that pretrial detention had negative consequences including loss of jobs and destruction of businesses, evictions, loss of belongings and equipment needed to work, family and custody disruptions, and lost educational opportunities. Incarceration before trial also increases the likelihood of a guilty conviction for women by 2.45 times. This is partly because individuals who do not pay bail are more likely to take plea deals just to get out of jail.
The United States is one of only two countries with a for-profit bail industry. Commercial bail bond industries facilitate the payment of bail for fees, and premiums like loans, usually costing 10% of the total sum of the defendant’s bail rather than cash bail where the defendant posts the total bail amount.This industry incentivizes the monetization of incarceration, with almost half of all bonds being commercial. Commercial and money bail systems present untenable costs to governments, amounting to billions of dollars. Through the jailing of poorer individuals who would otherwise be released until their trial, there is lost economic output as well as the cost of incarcerating that individual.
Laws have been adopted to reform the bail system by several states, including the New Jersey Criminal Justice Reform Act. In 2017, the state virtually abolished cash bail, resulting in a 30% decrease in the state jail population and 43.9% in pretrial jail population. Instead of cash-bail, non-monetary systems such as signature bonds, which essentially are a written promise to attend a court hearing with the penalty of a fine if the hearing is missed, were utilized by the judges to ensure defendants attend court dates. Appearances in court remained almost the same after the reform, at 89.4% in 2017. The success of New Jersey’s bail reforms are in part due to the transitional training for judges and their staff on the technical aspects of the new law, like how to use new computerized risk assessment tools, and the building of a new pretrial services department to organize and track pre-trial release. These supportive measures ensure that bail reform was a success.
Direct Cost of Bail based on 2018 Data
|Daily count of Inmates held on bail||Number of pretrial detainees [458,600] x percent of detainees held on bail [0.9]||412,740|
|Annual cost of incarceration per prisoner||CoreCivic Revenue per compensated person-day [$77.67] x 365||$28,382|
|Annual lost output per prisoner||Average pretrial earnings [$4,873] / labor share [0.567]||$8,590|
|Annual cost of bail||Daily count of inmates held on bail x (annual cost of incarceration per prisoner + annual lost output per prisoner)||$15.26 billion|
New York attempted bail reform legislation in 2019, but this year repealed the reforms after crime rates increased. Although there has been media and public backlash against the NY reforms, studies have shown that at most 7% of the increase in crime is attributable to bail reform, and even that could be mitigated by further supporting programs and systems to ensure the defendants risks are adequately assessed.,
The elimination of cash bail, replaced instead with non-financial forms of pretrial release such as signature bonds or release on recognizance (ROR), would assist in reducing the number of women incarcerated and in breaking the cycle of poverty and incarceration, specifically in communities of color. Moreover, diversion programs and the use of citations rather than arrests would allow individuals to await their court date without risking their jobs and housing. Additionally, risk assessment tools such as those used in New Jersey, can help determine who should be eligible for bail, without presenting insurmountable financial obstacles for defendants. These potential bail policy reforms would decrease the number of women incarcerated without conviction, thus reducing overall women’s incarceration.