Incarceration’s front door:

Money bail as a driver of mass

incarceration in the United States

Insha Rahman
November 12, 2019
What is bail?

“ Bail is the right to release pretrial. ”

U.S. Supreme Court
Stack v. Boyle (1951)

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The twin purposes of bail

For centuries, the only justification for

setting money bail was to address
failure to appear.

After the U.S. Supreme Court decided

Salerno in 1987, courts could legally
consider…..…………
public safety
as well.

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What does the
bail system look like today?
 Jail as the front door to mass incarceration

800,000 748,700

700,000 727,400
621,100
600,000
People in jail

500,000
403,019
400,000

300,000

200,000 160,863 163,994

119,671
100,000
86,492
0
1950 1960 1970 1980 1990 2000 2010

Year

Source: U.S. Bureau of Justice Statistics Annual Jail Census (2016)

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Bail as a driver of jail incarceration

Over the past 15 years,

99%
of jail growth nationwide has been driven by
pretrial detention.

Source: Josh Aiken, Era of Mass Expansion, Prison Policy Initiative (2017)
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 U.S. bail practices in global perspective

On average, the U.S. detains people pretrial at a rate

3x more than any other country.

That results in
over
10 million admissions to jail annually.

Source: Subramanian et al., Incarceration’s Front Door, Vera Institute of Justice (2015)
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What’s the impact of money bail?
The big myth of money bail

Money bail has no correlation

with public safety. It also has
little impact on failure to appear.

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Bail results in stark racial disparities

14.9%
Race/ethnicity

Hispanic/Latinx
17.4%

35.4%
Black
13.2%

47.4%
White
62.1%

0% 10% 20% 30% 40% 50% 60% 70%

Jail incarceration U.S. population

Composition of U.S. population versus jail population

Source: Alison Walsh, Criminal Justice Racial Disparities, Prison Policy Initiative (2016)
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Bail disproportionately harms people who are poor

Over 40%
of Americans would struggle to cover a

$400
emergency expense.

Source: U.S. Federal Reserve, Report on the Economic Well-Being of U.S. Households (2019)
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Jail is devastating to a person’s life

Even as little as two days in jail can have so

great of a destabilizing effect on a person’s
employment, housing, and familial
responsibilities that it increases the
likelihood in the future of missing court or
a new arrest.

Source: Lowenkamp et al., Hidden Costs of Pretrial Detention (2013)

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Jail is devastating to their legal case

Research shows that a person detained

pretrial is 18% more likely to be convicted
and receive a jail or prison sentence than
someone who is released.

Source: Dobbie et al., Effects of Pretrial Detention on Conviction, Future Crime, and Employment (2016)
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How did we get here?
Unique in having a for-profit bail system

The U.S. is one of two countries

that has a for-profit bail system.

Bail bond companies turn a profit in

our bail system. Annually, they secure
$14 billion
in bonds.

Source: ACLU and Color of Change, Selling Off Our Freedom (2017)
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Increased the use of money bail over time

In 1990, bail
was set in
37%
of felony cases
nationwide. By 2009, that
rate increased
to
61%
of all felony
cases.

Source: U.S. Bureau of Justice Statistics, Felony Defendants in Large Urban Counties (1990-2009)
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Money bail set at amounts people can’t afford

Nationwide, the average bail set in a

felony case is

$10,000
Source: Justice Policy Institute, Bail Fail: Why the U.S. Should End the Practice of Using Money for Bail (2012)
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What results have we seen in
places that have done bail reform?
The examples of DC, New Jersey, and New York

In all three jurisdictions, bail

reform led to more pretrial
release, an improved failure to
appear rate, and no adverse
impact on public safety.

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Washington, DC underwent bail reform 30 years ago

Washington, D.C. essentially

eliminated money bail in 1992.
They release close to 9 out of 10
people pretrial without any money
conditions. The court appearance
rate is 88%. Only 2% of people
are re-arrested for a new violent
crime during the pretrial period.

Source: Washington, DC Pretrial Services Agency

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New Jersey enacted bail reform less than 3 years ago

New Jersey implemented a new

pretrial system in 2017 that does not
use money bail. Even though
prosecutors seek detention in 48% of
all cases, eight out of 10 people are
released pretrial either immediately or
following a detention hearing within 3
days of arrest. The court appearance
rate is almost 90% and crime rates
have remained stable. In two years of
bail reform, the state’s pretrial jail
population has dropped by 30.8%.
Source: New Jersey Administrative Office of the Courts
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New York will enact bail reform in 2020
In 1992, New York’s City’s jail
population was 22,000 and there were
3,000 homicides. Today, the jail
population is 7,000 and the city is on
track to have fewer than 300 homicides.
In recent years, judges have increasingly
relied on pretrial release and supervision
instead of money bail. The court
appearance rate is 88% and 98% of
people have no violent felony re-arrest.
The new bail law, that impacts all of New York, is
anticipated to cut the state’s jail population by over
40%.
Source: New York City Mayor’s Office of Criminal Justice and the Vera Institute of Justice
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Questions?

Insha Rahman
Director of Strategy & New Initiatives
Vera Institute of Justice
irahman@vera.org
(212) 376-3046

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