Under the Constitution, people are granted the presumption of innocence and the right to liberty if they have not been convicted of a crime. Pretrial incarceration runs directly against these bedrock constitutional principles. While money bail and pretrial detention are intended to ensure court appearances and protect public safety, the evidence shows that this system is an ineffective and discriminatory approach to accomplishing these goals.

Read to learn more about the principles for and effective and just bail reform platform.

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Principles for Effective and Just Bail Reform

Learn more about the real-life consequences of money bail and pretrial detention.

The money bail system provides a false sense of security that masks the dangers it poses to public safety while also perpetuating racial and wealth bias.

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The Racial Impacts of Money Bail

Money bail creates a two-tiered justice system: those with money can buy their way to freedom, while those without money are made to languish in jail. The U.S. incarcerates close to half a million individuals who have not been convicted of a crime, but are denied their freedom because they cannot afford to pay bail. The racial biases embedded in our criminal legal system, and by extension the money bail regime, cause pretrial incarceration to disproportionately harm Black and Latinx people. Figure 1 documents racial biases in pretrial incarceration decisions. The underlying research by the Vera Institute of Justice found that judges were more likely to overestimate the risk of committing future crimes while awaiting trial posed by Black defendants and underestimate that of White defendants. This bias led to increased use of money bail and higher bail amounts for Black people relative to White people accused of a similar crime.

COVID-19 and Money Bail

Pretrial incarceration can cause incredible harm. Incarcerated people have less access to healthcare and are more vulnerable to illness. In the context of COVID-19, this puts incarcerated individuals at even more risk. The frequent movement in and out of jails from detainees and staff, combined with the limited space available to practice social distancing and medical isolation make jails particularly susceptible to the spread of the virus. Pregnant and postpartum women are also especially vulnerable to COVID-19 while experiencing pretrial detention.

Those experiencing pretrial incarceration are at risk of losing their job, home, and custody of their children. Family members and friends of the accused often put up their own assets, like their homes, as collateral meaning that the larger family becomes even more economically vulnerable.

The Real Cost of Money Bail

Money bail not only takes an economic toll on the families that become wrapped up in this system, but it is expensive for the public as well. Tax payers spend approximately $14 billion annually on pretrial detention. Incarcerating individuals before trial requires taxpayers to spend limited resources on people who could otherwise be released and economically self-sufficient.

When an Arrest Becomes a Death Sentence

In the age of COVID-19, an arrest could mean a death sentence because there is no way to effectively, safely, or fairly quarantine inside a jail.

$14 billion

is spent annually by taxpayers on pretrial detention.

44%

of surveyed county jails reported that reducing jail costs is currently one of their most pressing issues.

80%

of defendants released were not arrested for a crime and appeared at the appointed court date.

98%

of defendants release from jail do not endanger public safety by committing a violent crime while awaiting trial.

Principles of an Effective and Just Bail Reform Platform

There are long-term financial and personal repercussions of pretrial incarceration on people who cannot afford to buy their freedom that disproportionately impact Black and Brown people, and people with low income, and have consequences for the lives of them and their families.

Everyone wants to live in a safe community, and it is important to be clear that money bail and safety have no correlation. A comprehensive bail reform that both lowers the number of people in jail and diminishes the racial disparities in pretrial incarceration should:

Mandate Release on Recognizance

Release on one's own recognizance (ROR) is safe and effective. In jurisdictions where most people are released ROR while awaiting trial, the overwhelming majority of the defendants have shown up for court dates and not committed any crimes during release. Approximately 90% of arrests are for misdemeanor charges. Treating all misdemeanor charges as an automatic ROR preserves an individual's constitutional presumption of innocence, protects public safety, and significantly improves the pretrial system's efficiency.

Prompt Adversarial Court Hearings

Pretrial detention should be strictly limited to individuals charged with violent felonies who present a significant risk, as determined through an adversarial court hearing (within 24 hours), of imminent physical danger to another or a strong likelihood of willful flight. A violent felony charge alone should not serve as a proxy for this determination because no data suggests that a charge is a sufficient predictor of future arrests. Approximately 90% of persons accused of violent crimes are not likely to be rearrested awaiting trial, so they should not automatically be relegated to pretrial incarceration under the guise of public safety.

Community-Based Support

The goal of reforming our pretrial system is to provide respect for individual liberty and avoid the harm caused by pretrial incarceration, whenever possible. Community-based care and support for those awaiting trial is a critical component of an effective and just pretrial system. Scholars at the UCLA School of Law Criminal Justice Program advocate for establishing a community care and support agency (CASA) to provide individuals awaiting trial with the needed support and resources. A CASA is focused on connecting individuals to supportive resources, not supervising them, and does not work with law enforcement. All participation is voluntary, building upon an individual’s needs and strengths and the strengths of their community.

Independent Pretrial Services

Bail reform should establish supportive pretrial services independent of probation and law enforcement agencies. Pretrial services include automated communications, substance and mental health referrals, and community-sponsored release to protect public safety and ensure appearance for court appointments and trials. Implementing automatic phone call reminders in Multnomah County, Oregon, increased court appearance rates by 31% and saved the county over a million dollars in just eight months. Similar outcomes have been seen in counties across the country implementing automatic phone and text reminders. To optimize the benefits of pretrial services, the agency must operate independently from probation and parole functions. Referrals for substance abuse and mental health counseling to individuals with those needs must be non-mandatory.

Sever the Ideological Connection between Blackness and Dangerousness

A conversation about risk needs to examine the relationship between race, dangerousness, and citizenship critically. Both the institution of slavery and mass incarceration were organized along racial lines and justified by cultural beliefs about Black people’s dangerousness. There is a long tradition in criminal justice to use the latest scientific theories and methods to identify and contain individuals believed to be “dangerous” and remove them from society. Unfortunately, bail reform discussions have moved from the harms and unconstitutionality of denying someone their “right to liberty” to a focus on the “risks” an individual poses to society. We must think critically about the racialization of the concept of “dangerousness.” We must also challenge its use within the criminal justice system.

There is no statistical adjustment measure that can produce an accurate and fair estimate of risk within a racially biased system.

Dr. Kesha Moore

Senior Researcher

Bail Reform without Risk Assessments

Risk assessments are statistical tools commonly used in the criminal legal system for making decisions on pretrial release, incarceration parole, and related measures. These tools categorize people based on perceived risk for a specific behavior, like failing to appear for trial or dangerousness. Algorithmic risk assessments are the latest version of psycho-social instruments used to assess an individuals risk level for a particular behavior. Approximately 25% of U.S. residents now live in a jurisdiction that uses pretrial risk assessments. Risk assessments promised to provide an efficient and standardized process for determining pretrial outcomes, with more accuracy and less bias than judicial determinations of risk. However, the reality is much different. There are several problems with risk assessments, beginning with the biased data that informs statistical algorithms, the conflation of future arrest with “danger,” and the lack of transparency and accountability in these tools.

Coalition Letter

Read why a coalition of civil rights, digital justice, and grassroots organizations are concerned about the use of risk assessments

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