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BAIL FAIL:
Why the U.S. Should End
the Practice of USING Money for BaiL
JUSTICE POLICY INSTITUTE | SEPTEMBER 2012

2

justice policy institute

CONTENTS
3	

PART 1: INTRODUCTION

5	

PART 2: BACKGROUND AND CONTEXT

5		

The Justice Policy Institute
is a national organization
focused on reducing the use
of incarceration and the justice
system and promoting policies
that improve the well-being of
all people and communities.

The pretrial system is a complex process to navigate.

6			

The History of Pretrial Detention and Use of Bail

8			

The General Pretrial Process

10 	

PART 3: THE USE OF MONEY BAIL

10		

The use of financial release has increased over the past years.

10		

The amount of money bail set for defendants’ release has risen.

13		The use of money in the pretrial process disproportionately
impacts vulnerable communities.
17 	

PART 4: Money Bail Effects on the Judicial Process

17		Money bail keeps people in jail when they otherwise could safely
remain in the community while awaiting trial.
20			

21		

Special Feature: Travis Alston

Money bail does not increase community safety.

24		Money bail poses adverse risks to those who have been charged
with offenses.
27 	

PART 5: Effective Alternatives to Money Bail

27		There are alternatives to money bail that improve outcomes for
people awaiting trial and the community.
28			

Special Feature: Tyriel Simms

35		Measures of pretrial detention should be implemented to provide
national measurements of our pretrial processes and drive
pretrial reform efforts.
1012 14th Street, NW, Suite 400
Washington, DC 20005
TEL (202) 558-7974
FAX (202) 558-7978

36			

40	

Special Feature: Darian Watson

PART 6: Recommendations

41			

WWW.JUSTICEPOLICY.ORG
46	Endnotes

Special Feature: Spurgeon Kennedy

“What has been demonstrated here is that usually only one factor
determines whether a defendant stays in jail before he comes to trial. That
factor is not guilt or innocence. It is not the nature of the crime. It is not
the character of the defendant. That factor is, simply, money. How much
money does the defendant have?”
—U.S. Attorney General Robert Kennedy1

BAIL FAIL:
Why the U.S. Should End
the Practice of USING Money for BaiL
JUSTICE POLICY INSTITUTE | SEPTEMBER 2012

2

justice policy institute

Money determines
pretrial release for

7 out
of 10

people accused of felonies.

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part 1

Introduction

The vaguely understood pretrial process of bail costs the taxpayers of the
United States billions of dollars and infringes on the liberty and rights of
millions of Americans each year.
Fortunately, there are alternatives that states and

court dates was costing counties, alone, around $9

localities can pursue that have been shown to

billion a year.2

effectively promote safety, deliver justice, and
decrease the number of people in jails all while
reducing the price of this incarceration to taxpayers and those directly impacted.

The use of bail money is generally accepted for
securing release from jail after an arrest. It is a part
of our culture: there are jokes about getting bail
money if one anticipates getting into trouble and a

Numerous reports and studies have supported the

very common fundraiser involves donating dollars

elimination of money bail since the early 1900’s;

in order to “bail out” a person raising money for

however, reform efforts have been slow. With the

a cause. However what is not well known is that

era of mass incarceration putting the United States

starting at the time of arrest, many people charged

at the top of the world regarding the number of its

with an offense undergo a confusing, coercive,

residents behind bars, the need for reform has be-

and expensive process intended to deliver justice.

come increasingly urgent. States that cannot main-

Constitutional safeguards, court rulings, and laws

tain burgeoning criminal justice systems are now

provide for both the protection of people who are

open to safer, more effective ideas.

accused of offenses, as well as, the power of gov-

Current policies and practices around money bail
are among the primary drivers of growth in our
jail populations. On any given day, 60 percent of
the U.S. jail population is composed of people who
are not convicted but are being held in detention
as they await the resolution of their charge. This

ernment to pursue justice and safety in the community. However, the extensive use of money bail
as the primary release mechanism has distorted the
pretrial justice process. While cases are resolved,
justice is not always served and our communities
are not always safer.

time in detention hinders them from taking care of

However, the ability to pay money bail is neither

their families, jobs and communities while over-

an indicator of a defendant’s guilt nor an indicator

crowding jails and creating unsustainable budgets.

of risk in release. The focus on money alone as a

In 2011, detaining people in county jails until their

mechanism for pretrial release means people often

3

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justice policy institute

are not properly screened for more rational mea-

•	

Discussion of issues involved in the use of

sures of public safety risk: their propensity to flee

money bail, such as disproportionate impact

before their court date or their risk of causing public

on certain communities, loss of liberty, and its

harm. Meanwhile, those too poor to pay a money

linkage to the practice of plea-bargaining.

bail remain in jail regardless of their risk level or
presumed innocence. Evidence suggests that up

•	

practices to give readers an idea of what could

to 25 percent more people could be safely released

be done instead of depending on money bail.

from U.S. jails while awaiting trial if the proper
procedures are put in place,3 including valid risk assessments and appropriate community supervision.

Overview of more effective, just, and cost-saving

•	

Recommendations for beginning to practically
address the issue of money bail.

This report provides an explanation and analysis of

There are vastly more effective and cost-saving

the use of money bail in the pretrial justice system.

practices that should replace money bail as our pri-

The following sections are designed to facilitate

mary release mechanism. By implementing more

meaningful discussion and reform:

effective and efficient programs and services, vari-

•	

Overview of the pretrial process so that

ous jurisdictions across the U.S. are demonstrating

even readers with little to no familiarity

the cost savings and enhancement of community

with the process can understand what may

safety that could be gained.

happen from arrest through a charge
being resolved.

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part 2

Background AND CONTEXT

Between June 2010 and June 2011, about 11.8 million people were processed
through jails across the United States. At midyear 2011, the total U.S. jail
population was 735,601 people. U.S. jails have operated at an average of 91
percent capacity since the year 2000, resulting in a huge financial burden to
states, cities, and counties.4
Since 2005, a majority of people held in jail have

more than a majority waited 51 days or more). Me-

not been convicted of the offense for which they are

dian waits ranged from 31 days for forgery to more

charged: approximately 60 percent of people in jails

than 150 days for rape charges.6

are merely awaiting trial or are in the trial process
for the offense in question.5
The Fifth, Sixth, and Fourteenth Amendments
provide the constitutional basis for the legal
principle commonly referred to as “innocent until proven guilty,” which is a critical safeguard
within our criminal justice system. The Sixth and
Fourteenth Amendments, along with many court
rulings since their passage, also provide guidance
for if, when, and how long, courts may order the
detainment of an accused individual. The Eighth
Amendment of the U.S. Constitution provides
that bail not be excessive for people accused of
offenses. These protections are in place so that the
courts may adequately examine a person’s guilt
or innocence, while also safeguarding the person’s
life and liberty.

The pretrial system
is a complex process
to navigate.
What pretrial process a person will go through
depends on the state and jurisdiction in which he
or she is arrested. The United States Constitution’s
Fifth Amendment affirms that people cannot be
deprived of their liberty without due process of
law. However, states and jurisdictions have varying laws on detainment for capital offense charges,
consideration of safety, and requirements around
imposing the least restrictive bail conditions. The
American Bar Association and the National Association of Pretrial Service Agencies have provided
standards to guide pretrial activities; however, at

There are no national data regarding how long

this time, many practices do not yet comply with

people stay in jail until their case is resolved; how-

these recommendations.

ever, in the 75 most populous counties, people
accused of felonies who did not post bail in 2002
waited a median of 51 days in jail until trial (that is,

Summons and Citations: In some jurisdictions, law enforcement has the option to dispense

5

6 justice policy institute

The History of Pretrial
Detention and Use of Bail
The use of pretrial detention and bail in motivating appearance at court
hearings has an extensive history.
As early as 1275, officials in England were debating and curtailing the use of pretrial detention and
bail. The use of bail carried over from England into the U.S.; however, initial laws greatly limited the
use of pretrial detention and excessive bail. The role of the for-profit bail industry began in the United
States in the 1800’s primarily due to the lack of large family or community ties as well as large areas
where a defendant could flee during the settling of the country.
However, as early as 1920, critiques of the bail system’s use of for-profit bail bonding companies
emerged and called for alternatives to surety bonds. Even then, the bail bonding system was criticized as it “neither guarantees security to society nor safeguards the right of the accused.” Recommendations were made for the use of citations rather than arrests and systematic “fact-finding” in
determining bail for the accused. In 1954, reports began to show that an increasing majority of people
detained while awaiting trial were of low income; these observations paved the way for pilot programs, such as the Manhattan Bail Project, testing the use of Release-On-Recognizance and other
forms of pretrial release.
Due largely to reform efforts, the Bail Reform Act of 1966 was passed which created a foundation for
reducing dependence on money bail and increasing the use of nonfinancial release options. The Bail
Reform Act of 1984, a component of a larger Comprehensive Crime Control Act of 1984, added the
consideration of safety in the community as a factor in pretrial release decisions. Challenges to this Act
were defeated in United States v. Salerno, in which the Supreme Court concluded that the protection
the Act provided did not violate Constitutional rights as long as detention was not applied excessive.
Since the 1970s, various states and jurisdictions have worked to improve the pretrial process through
various programs and pilots; meanwhile, the for-profit bail bonding industry has continued its efforts to
keep for-profit bail companies a part of the judicial system.

Timothy R. Schnacke, and others, “The History of Bail and Pretrial Release,” Pretrial Justice Institute, September 2010.

B A IL FA IL

citations or summons for certain charges in order

courts may detain people charged with a particular

to reduce the number of arrests and lessen the bur-

offense of interest to the state, with prior convic-

den on the local jail to process people charged of

tion history, and/or having the status as an un-

offenses. The process from arrest to charge resolu-

documented immigrant. About 21 states have laws

tion generally proceeds as shown in the flow chart

disallowing the detainment of people for charges

“The General Pretrial Process”; however, the spe-

other than capital offenses, and at least two states—

cifics and requirements involved will vary among

Alaska and Tennessee—do not allow courts to deny

jurisdictions.

bail even for capital offenses.8

Upon Arrest: Depending on the potential or

Release on Bail: There are several ways a per-

actual charge and the jurisdiction, a person may be

son may be released after their arrest as they await

released from the police station after having their

their court date.

charge processed and bail set there. Others may
have to go through a booking at a jail prior to having bail set. Booking typically involves paperwork

Release options that do not involve money upfront:
•	

Release on recognizance—The person signs a

to collect personal information, details about the

contract agreeing to appear in court for their

arrest and charge, and, in some jurisdictions, fin-

hearing as required.

gerprinting and a photograph. Usually, the accused
person is then held in detention until appearing

•	

Unsecured bond—The person signs a con-

before a judicial officer or a judge to have the con-

tract agreeing to appear in court for their

ditions of their release set.

hearings and accepting liability for a set
amount of money should they not appear in

Bail Setting: The Supreme Court has affirmed

court as required.

that people have the right to counsel at the bail
setting before a judicial officer; 7 however, this is

•	

Conditional release—The person is given a list

not provided in most jurisdictions. In some places,

of stipulations that must be honored in order

a second bail hearing or review will be held very

to remain out of jail while awaiting trial. These

soon after the first bail determination where the

often include drug and alcohol use screenings,

original decision of whether to grant bail and how

orders to attend mental or substance abuse dis-

much can be reviewed by the judge; counsel for

order treatment, and/or monitoring by a third

the defendant is required at this hearing in some

party, such as a family member, pretrial service

places. In other places, only if a person requests it

agency, or others.

will they get a second bail hearing.

•	

Release to pretrial services—Where available,

Bail Denied: In accordance to the laws of the

someone may be required to be supervised by

jurisdictions, judicial officials may deny bail to

a pretrial services agency. These organizations

prevent the pretrial release of people accused of

typically conduct risk assessments and provide

certain offenses. In accordance to the Bail Reform

the appropriate supervision as indicated by

Act of 1984, most states allow for bail to be denied

risk assessment findings.

for capital offenses, which are crimes punishable
by death. Around 28 states have laws that allow
for bail to be denied for charges other than capital
offenses with rationales that vary greatly. Often

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justice policy institute

THE GENERAL PRETRIAL PROCESS
SUMMONS

Arrest

CITATION

BOOKING/LOCK-UP
BAIL SET

BAIL DENIED

JAIL
Cash Bond
Surety Bond

Conditional Release

Deposit Bond

Release to Pretrial Services

Property Bond

Unsecured Bod
Released On Recognizance

UNABLE TO
PAY BAIL
REMAIN IN JAIL

COURT HEARING

PLEA
BARGAIN

FAILURE TO APPEAR
RE-ARREST
JAIL
COURT HEARING

CHARGE RESOLVED

PLEA
BARGAIN

B A IL FA IL

Release options that require money in order to get

Held on Bail: When a bail is assigned that re-

out of jail pretrial:

quires money upfront, people who are unable to

•	

Cash bond—The person (or their friends and
family) pays the bail amount in full in order
to be released from jail. Upon return to court,

•	

plea bargain).
The general pretrial process is described in the fol-

ministrator’s or other court fees). Some juris-

lowing flow chart. However, each jurisdiction will

dictions allow cash bail to be paid with a credit

differ in the specifics of how the process will pro-

card; others forbid this.

ceed; therefore, this chart is only intended as a gen-

Deposit bond—The person pays a percentage
the understanding that failing to appear to
court will make them liable for the full bail
amount. This percentage usually is required in
the form of cash or a payer’s check.
Commercial bail bond—Also known as a
surety bond, the person (or their friends and
family) gets a bail bondsman (a private citizen
working for a for-profit bail bonding company)
to sign a promissory note to the court for the
full bond amount. They are required to pay the
bondsman a non-refundable fee that is typically 10% of the bond amount. Depending on
the bondsman, some people will be required
to put up collateral as well (such as a vehicle,
home, etc.).

•	

ing or the charge is resolved (usually through a

they will be reimbursed this money (less ad-

of the bail amount (usually 10 percent) with

•	

pay are “held on bail” in jail until their court hear-

Property bond—In lieu of cash, the person may
provide a deed and other paperwork to allow
the courts to put a lien on a property for the value of the bond amount. Until the person appears
in court, the court holds the deed on a house or
title to other property such as a boat or car.

Sometimes, judges or court representatives will mix
the release options. A person may be required to
sign for an unsecured bond and abide under certain conditions to be released. In other situations,
judges will require that a person post a money
bond while also remaining under supervision of
pretrial service agencies.

eral explanation of the steps a typical person may
encounter from arrest until their charge is resolved
through acquittal, having charges dropped,
or conviction.

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justice policy institute

part 3

The Use of Money Bail

According to the most recently released State Court Processing Statistics data,
the proportion of people charged with a felony who were granted nonfinancial
release declined by 32 percent from 1992 to 2006; at the same time, financial
release, primarily through commercial bonds, increased by 32 percent.

The use of financial
release has increased
over the past years.

for those detained until their hearing more than

Release on recognizance was the most common

lation affected by these increasing bail assignments.

type of pretrial release in 1992; however, its use
had declined by 33 percent by 2006. Overall, 70
percent of people charged with a felony were assigned money bail in 2006. The proportion of people detained pretrial increased by about 14 percent
to a high of 42 percent of all those charged with
felonies in 2006 (only 5 percent of these were held
without bail).9

The amount of money
bail set for defendants’
release has risen.

doubled from an average bail of $40,000 in 1992 to
$90,000 in 2006.
Median bail amounts show the extent of the popuIn 2006, the total population had a median bail
amount of $10,000 which means that at least half
of felony defendants are assigned a minimum of
$10,000 in bail. The average bail amount nearly
doubled between 1992 and 2006 from an amount
of $25,400 to $55,500. Among people released, the
average bail amount increased from $7,800 in 1992
to $17,100 in 2006. Of defendants remaining in jail
or prison pretrial, 50% percent had a bail amount of
$40,000 or more in 2006. Since 2000, the median bail
amount for those detained has been $25,000, up
from $10,000 in 1992.
The proportion of felony cases assigned bail under
$5,000 decreased by nearly 15 percentage points

A Bureau of Justice Statistics survey of felony

from 1998 to 2006; and the percent of cases with

cases in the 75 most populous counties of the U.S.

amounts from $5,000 to $24,999 has remained rela-

showed that average bail amounts have increased

tively stable.

by over $30,000 between 1992 and 2006,10 posing a
serious concern for indigent populations involved

Meanwhile, more cases are receiving very high bail

in the criminal justice system. Average amounts

amounts. For example, in 1998, 25 percent of cases

B A IL FA IL

Defendents released on nonfinancial bail prior to trial declined
as those detained on financial bail increased.

50%

Percent of felony defendents

45%
40%
35%
30%
25%
20%

1992

1994

1996

1998

Detained

2000

2002

2004

Financial Release

2006

Nonfinancial Release

Source: State Court Processing Statistics data as retrieved from the Felony Defendants in Large Urban Counties reports, 1992 – 2006.

Between 1992 and 2006, the median bail amount
for those detained increased by $15,000.
25,000

Median Bail Amounts ($)

20,000

15,000

10,000

5,000

0

1992

1994

1996

1998
Detained

2000

2002

2004

Released

Source: State Court Processing Statistics data as retrieved from the Felony Defendants in Large Urban Counties reports, 1992 – 2006.

2006

11

justice policy institute

Cases with bail amounts under $5,000 have dropped since 1998.
35

Proportion of cases

30

25

20

15
1994

1996

1998

2000

2002

2004

$5,000 - $9,999

Under $5,000

$10,000 - $24,999

Source: State Court Processing Statistics data as retrieved from the Felony Defendants in Large Urban Counties reports, 1992 – 2006.

An increasing number of cases are assigned high bail amounts.

40%
35%
30%
Percentage of cases

12

25%
20%
15%
10%
5%
0
1994

1996
$25,000 or more

1998

2000
$25,000 - 49,999

2002

2004

$50,000 or more

Source: State Court Processing Statistics data as retrieved from the Felony Defendants in Large Urban Counties reports, 1992 – 2006.

B A IL FA IL

were assigned a bail amount of $25,000 or more;

pretrial.14 The use of money bail puts people with-

yet, in 2004, 23 percent received a bail amount of

out expendable income at risk of suffering the ad-

$50,000 or more. These increasing bail amounts

verse impacts of detention in their cases.

suggest that bail inflation has occurred along with
an increase in the use of surety bonds involving
the for-profit bail bonding industry. This means
that the amount of money that bondmen can collect has increased along with the rise in money bail
amounts. Overall, whereas 25 percent had a bail
amount of $25,000 or more in 1998, this number
increased to 37 percent by 2004.

People who are able to put together enough money
to post bail or pay a bail bondsman’s fee may
deplete their funds and the funds of families and
friends are that is needed to pay rent, buy groceries, and cover other bills.15 People who are unable
to pay their money bail (or a bond for a portion
of the bail) and remain in jail may lose their jobs,
default on vehicles, lose their homes, get behind on

Not only do high bail amounts pose a threat to consti-

child support payments, lose custody of dependent

tutional rights to liberty pretrial, but they are believed

children, and more. The implications can make or

to put low income populations at a disadvantage

break a person’s ability to resume life after their

when facing plea bargains: people may feel pres-

case is resolved.

11

sured to plead guilty as remaining in jail has such
significant negative consequences, such as losing a
job or not being available to take care of a dependent.

“The requirement that virtually every
defendant must post [money] bail…
imposes personal hardship on them,

Whereas the Bail Reform Act mandates that people

their families, and on the public which

be released to the “least restrictive” conditions that

must bear the cost of their detention

will also assure appearance at trial and the safety of

and frequently support their depen-

the community, many are not able to access those

dants on welfare.”

least restrictive conditions due to an inability to pay
bail. The role of finances in this equation not only
violates the mandates of the Bail Reform Act but also
is believed to violate the Equal Protection Clause.12

—American Bar Association, Standards
Relating to Pretrial Release, 196816
For all intents and purposes, those held in jail are
set up to fail, even if they are innocent of the charge.

The use of money in
the pretrial process
disproportionately
impacts vulnerable
communities.

When held in jail, a person is not able dress as pre-

Many studies have shown over the years that

to limited phone use, obligations to work long shifts

people held in jail pretrial end up with worse trial

in jail programs,19 placement in jails long distances

outcomes than people who are free while awaiting

away from their counsel,20 and other reasons.

trial. Those held pretrial are more likely to be convicted of a felony,13 receive a sentence of incarceration, and be sentenced longer than those released

sentably as one who is able to come from their own
home dressed and prepared.17 Jurors who see defendants in jail uniforms and shackles may be biased
as being in jail is equated to dangerousness and
guilt.18 They are not able to work with their counsel to prepare their defense, gather witnesses, and
other activities needed to present a strong case due

People held in jail pretrial may lose their job due
to absence;21 and if they are self-employed, pretrial

13

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justice policy institute

detention effectively shuts their business down.

matters should be available to all people awaiting

Not only does the lack of income impact the indi-

their court date, keeping within the parameters

vidual, their family, and their communities, but

of safety but not requiring they have financial re-

the collective amount of lost income due to pretrial

sources to do so.

detention can amount to millions of dollars and
impact a country’s economy. A number of studies
have shown the loss of income in other countries
due to pretrial detention: In Mexico, $100 million
dollars of income was lost to pretrial detention
in 2006.22 In Argentina, over $10 million dollars
of income is lost to pretrial detention each year.23
Similar information about income loss in the U.S.
are not available, but considering that thousands
of people are held pretrial throughout the year, the
loss of income is likely to be significant.
Pretrial detention causes some people to lose their
home, apartment, or spot in a shelter.24 They may

“The argument that Madoff and
Dreier had a fundamental right to the
extensive conditions they received
ignores the fact that such conditions
are unavailable and unrealistic for
the broader population. Rather, these
extensive conditions represent special
privilege, and there is no fundamental
right to pay for preferential treatment
in the criminal justice system.”
—Jonathan Zweig, Harvard Journal
on Legislation28

suffer a disruption in their medical care as provided

The question of whether money bail leads to viola-

by Medicaid and may even lose their health insur-

tions of the Equal Protection Clause of the Four-

ance due to being in jail.25 Their families are often

teenth Amendment has been raised. The Equal

adversely impacted, as their children may have to

Protection Clause provides that laws are to be car-

move to another parent or relative’s home, suffering

ried out in a way that does not differ between peo-

disruptions in their education and home life, as well

ple in similar situations.29 Accordingly, a number of

as the trauma of having an incarcerated parent.26

court decisions have agreed that a person should

In addition to the use of money bail, people with
financial resources are currently able to pay “for
extensive conditions of release” that would otherwise not be permissible.27 One commentator noted
the expensive conditions for pretrial release that
Bernard Madoff and Marc Dreier were able to pay
for in order to avoid pretrial detention for charges
of financial “white collar” crime. In addition to
being able to post a bond for their bail, they paid
for security, video monitoring, and other restrictions in order to remain in their homes and attend
to business while awaiting trial. In addition to the
use of money to pay bail, this expanded use of
money to pay for conditional requirements widens
the gap between defendants who have money and
those who do not. The ability to maintain one’s
job, housing, caregiver responsibilities, and other

not be incarcerated on the basis of wealth, but all
should have equal treatment and constitutional
access to their fundamental rights under the law
without regard to their financial status. However,
the use of money bail with populations that do not
have access to financial resources results
in very different treatment compared to
those who can afford
to post a bond. Although an upper middle class person and
a low-income person
may be arrested and
charged with the same
offense, the upper
middle class person

The average

bail amount for
detained people
has increased from
$39,800 in 1992 to

$89,900

in 2006.

B A IL FA IL

is much more likely to be able to post a bond and

and sentencing decisions, racial disparities in the

might even be able to secure a release on the same

pretrial process have a ripple effect throughout

day. Meanwhile, the low-income person remains

the justice system. The U.S. Supreme Court has

in jail because he cannot pay a bond—regardless

affirmed the pretrial process as “perhaps the most

of the fact that the offense charge was exactly the

critical period of the proceedings”,32 so the impact

same as his released counterpart’s and regardless

of race on decisions during this time is of particular

of his presumed innocence.

importance. Previous studies have shown differing results when trying to find a direct relationship

Due to disparities in the pretrial
process, African American and
Latino populations are more
impacted by the use of money bail.

between race and pretrial decisions. However, a

Approximately 11.8 million people were processed

ence pretrial decisions and outcomes. The study

through jails during 2011; the total jailed popula-

revealed correlations between race and all pretrial

tion at a single point in time (midyear) was 736,000

outcomes analyzed, concluding that “each correla-

people. Annual jail populations show that a high-

tion indicated harsher treatment for African Ameri-

er number of white people are in jail; however, con-

cans.”33 The results showed that:

30

sidering that the black population only comprises
13 percent of the total U.S. population, it is disturb-

recent study looked at how race affects extralegal
factors, such as education and financial support,
which then affect legal factors, such as prior record
and severity of charge. Together these factors influ-

•	

leased on their own recognizance than white

ing that they comprised 38 percent of the U.S. jail

defendants.34

population in 2012. Estimates show that the rate
of Black/African American people being detained
in jail was nearly 5 times higher than white and 3
times higher than Hispanic people.31
Disparities in jail populations have persisted despite years of studies on race and pretrial decisions.
Since being jailed while awaiting trial has a direct
impact on case outcomes such as conviction rates

African Americans were less likely to be re-

•	

African Americans ages 18 through 29 received
significantly higher bail amounts than all other
types of defendants.35

Although the study did not show “race” directly
predicting pretrial decisions, the relationship or
“interaction” between race and other factors, such
as age, gender, and socioeconomic status, was what
directly impacted pretrial decisions.
For example, although a judicial officer
may not give a high bail amount specifically because of a defendant’s race,
the person may have had difficulty
getting a job due to his race, and thus,
was rated as a higher flight risk due to
an unstable source of income. Awareness of how this may happen at the
bail setting stage is crucial for reducing
disparities due to pretrial decisions,
particularly as there is little oversight

15

justice policy institute

350,000

The racial and ethnic breakdown of detention rates reveal
serious racial disparities in pretrial detention.

800
700

300,000

600

250,000

500

200,000

400
150,000

300

100,000

200

50,000

Detention Rate for 100,000

# in U.S. Jail Population

16

100

0

0
White

Black/
African American

U.S. Jail Population

Hispanic/
Latino

Other

Detention Rate per 100,000

Sources: Karen R. Humes, and others, “Overview of Race and Hispanic Origin: 2010,” 2010 Census Briefs, 2011, Table 1; Todd Minton, “Jail Inmates at Midyear 2011
– Statistical Tables,” 2012, Table 6.

of decision making processes at this phase. In most

Although judges and judicial officers may deny or

jurisdictions, people do not have legal representa-

simply not be aware of any racial bias in pretrial deci-

tion at the time their bail is first set. Without under-

sions, there is strong evidence that these bail decision

standing how race and extralegal factors impact the

makers consider the lost freedom caused by pretrial

pretrial process, the effect of race on other circum-

detention to be a greater loss for whites than for

stances and life factors will continue to be used to

blacks. By creating a predictive model that consid-

“reinforce stereotypes of more dangerous offenders

ered details of the charges, the people charged, and

in the minds of judges.”36

other variables, researchers estimated what the bail

“…the disparity in bond amounts occurring at a less visible stage of case
processing translate indirectly into
racial disparities in imprisonment due
to the relatively strong effect of bond
amounts on…prison sentences…”
—John Wooldredge37

decisions should have been for defendants and compared them with what the decisions actually were.
They then estimated the cost of loss of freedom and
other consequences of detainment in jail pretrial such
as loss of employment, etc. Their calculations suggest
that judicial officials valued the loss of freedom for
blacks less; in essence, whites’ freedom was valued to
be worth more by about 60 to 80 dollars per day.38

B A IL FA IL

part 4

Money Bail Effects on the
Judicial Process

The use of money bail as a standard practice keeps many people in detention when, in reality, they could be safely released while waiting for their
case to be resolved.

Money bail keeps
people in jail when
they otherwise could
safely remain in the
community while
awaiting trial.

extensive use of money bail in a jurisdiction and
point to ways to effectively reduce jail populations;
however, not all jurisdictions track bail amounts.
For example, a recent study on the Los Angeles
County Jail revealed that bail amounts in Los Angeles were overwritten with “zero” once a defendant posted bail.41 This made it difficult to assess
and make recommendations on how the county
was using bail schedules and other pretrial service

A study using the State Court Processing Statistics

options to manage the number of people held on

found that in many of the largest U.S. jurisdictions,

bail while awaiting trial.

around half of those kept in jail would have been
less likely to be rearrested than those who had
been released. The study also suggested that with

Case Study: Baltimore, Maryland

39

proper screening mechanisms, an additional 25
percent of people could be released pretrial without
increasing offenses or failures to appear.40 However, as many jurisdictions do not have adequate
screening or pretrial monitoring programs in place,
judicial officials continue to rely on money bail as a
release option.

One detention center that does track bail amounts
is the Baltimore City Jail in Baltimore, Maryland.
It is one of the 20 largest jails in the U.S. and one
of the few local jails run by the state correctional
agency, and has a higher than average percentage
of its population—90 percent—on pretrial status.42
A snapshot of data showed that about 1 out of every 14 people in pretrial detention were held on a

Data are inconsistent on how many people are

total bail amount of $5,000 or less on February 13,

jailed because they cannot afford to post the bail

2012. This means that some individuals may have

amount or even acquire the services of a for-profit

been detained because they were unable to pay the

bondsman. Tracking bail amounts would reveal the

full bail amount or a bail bond of $500—the typical

17

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JUSTICE POLICY I NSTI TUTE

10 percent fee charged by bail bondsmen to post the bail. On February 13,
2012, sixty-two people were held on
a bail amount adding up to $1,000 or
less and 19 people were held on a bail
amount of $100-250.43 These 62 people
were charged with offenses like trespassing, theft, driving on a suspended
license, prostitution, failure to pay
child support, minor drug charges and
technical violations of probation. People who remain incarcerated on these
low bail offenses usually do not have
the small amount of money necessary to secure
their release. Considering the financial
burden of simply detaining someone in a jail even

proportions are applied to the February 13, 2012,
jail population, 973 people were classified as low
security while 2,055 people were held with a medium security classification.

for 24 hours, it is likely that in these cases with
very low bail amounts, a release option other than
money bail would be a better use of public dollars. A person who remains in detainment due to

On February 13, 2012, 62 people were in the Baltimore
City Jail on bail amounts of $1,000 or less.
Total bail amount*

# of people in jail

$100-250

19

$251-500

21

$501-1,000

22

$1,001-2,500

47

$2,501-5,000

123

$5,001-7,500

49

$7,501-10,000

71

$10,001-25,000

190

$25,001-50,000

173

$50,001-75,000

62

$75,001-100,000

82

The immediate financial impact of unnecessary

$100,001-1,000,000

281

pretrial detention along with the later social costs

$1,000,001 +

4

No Bail

1,806

Detainer**

243

Total number of people held pretrial

3,193

Sentenced Inmates

412

Total number of people in jail

3,605

homelessness, a substance abuse issue, or a mental
health disorder should be diverted to other programs for more cost effective services.
In Baltimore, court dates ran an average of 30 days
after arrest; however, some court dates may be set
as long as 120 days after arrest. Those who remain
in jail while awaiting trial because of their bail
amounts drive up the average length of stay. Consequently, the average length of stay in the Baltimore City Jail in 2010 was 38 days.44

to society due to loss of employment, housing,
transportation, child support, and other resources
provide an impetuous for utilizing other means to
ensuring a defendant’s presence at his or her court
hearing. This is particularly important for those
with nonviolent charges being held in lower security settings. In Baltimore City in 2010, 27% of the
jail population was held in low security while 57%
was held in medium security settings.45 If those

*Total bail amount may include multiple bails for that one person. People who
have multiple charges, one of which has a NO BAIL set, will be included in the NO
BAIL number, not the other bail amounts.
**Detainers are when a person is being held by another jurisdiction or agency.
People who were being held pretrial and had detainers were included in the Detainer total not under individual bail amounts, but were included in the sentenced
category if they were already sentenced.
Source: Jail Daily Extract, February 13, 2012

B A IL FA IL

Research shows that

25%

Case Study:
Virginia

for 51 percent of all those booked during that time
span.47 In determining bail, California judicial officials rely heavily on bail schedules, which are lists

An analysis of people

of bail amounts preset for each offense. This is for

in detention who were

a variety of reasons, including providing “cover”

more people

investigated through

to judicial officials when facts necessary to make

Virginia’s Pretrial Ser-

an independent bail decision are not available at

pretrial without

vices agencies, using

the time of the hearing.48 Some jail administra-

the Virginia Pretrial

tors, however, have refused to jail people with

failures to appear.

Risk Assessment In-

bail under a certain amount, on the rationale that

strument, showed a

they are generally low risk and will just increase

considerable need for

overcrowding. To thwart this initiative, judicial of-

could be released

increasing offenses or

reducing low-risk populations held in jail on low

ficers have assigned even higher bail amounts than

bond amounts. This study revealed that 15 percent

recommended in order to “force” a person to be

of the 528 defendants had a bond set but remained

jailed. One jail would not house those with a bail of

in jail. Over three-quarters of the defendants were

$25,000 or less for misdemeanor cases. People with

held on a bond amount up to $5,000. Eighty-nine

misdemeanor charges that remained in jail until

people (17 percent) had a bond amount up to

their hearing spent an average of 8.23 days in jail

$1,000. Over 40 percent were classified as low to

until disposition; those with felony charges spent

average risk on their risk assessments. Compari-

an average of 53.03 days in jail until disposition.49

sons of bail amounts revealed that defendants with
a “Below Average” risk rating had the highest bond

The use of money bail results in thousands of

amount average at $6,975.46

people being held pretrial, and eventually increases
the likelihood that more people will be incarcerated
to serve sentences as well. This is not a necessary

In Virginia, 77% of the pretrial population was held on a bail amount up to $5,000.
Classification
Low risk
Below Average
Average
Above Average
High Risk

# (%)

Average Bail Amounts

40 (8%)

$2,903

81 (15%)

$6,975

97 (18%)

$4,010

105 (20%)

$5,528

160 (31%)

$6,914

Source: Virginia Community Criminal Justice Association, “October Study,” 2012.

Case Study: California
Although bail amounts are not tracked, a study of
Los Angeles County Jail showed that in 2007-2008,
about 200,000 people were held in jail from arrest
through disposition of their case. This accounted

evil, as alternative solutions are available and have
worked in providing safe communities and functional pretrial justice for decades. A few snapshots
of work being done in some states provide an idea
of the magnitude of savings possible:

19

20 justice policy institute

Travon Alston
I wound up getting caught in an incident with three friends. A fight broke out, someone got shot,
and I got arrested for it. The charges were attempted murder and first degree assault.
That was my first time being charged as an adult. I was 18. My bail was set at $250,000—cash bond.
I couldn’t pay. No one in my family could pay that. I knew I was sitting. I cried the first night. It was
rough, you know, that first experience. I’d heard so many stories about it, about people getting raped. It
wasn’t like that, but it was rough. It wasn’t like your mother could come get you; you were there to stay.
It was hard, especially the city jail because in the summer, it’s extremely hot. The walls sweat. You’re
not living to your needs; you’re living with what somebody else tells you to do. You’re in the cell with
another guy who’s just chaotic, so it’s a psychological game at the same time. I was stabbed and all. It
was a bad experience. I’d been in street fights before—clean fights—but it’s a whole other world in jail.
It’s animalistic. It takes a strong mind, a strong will, to deal with jail, but at the end of the day, I kept my
faith. I knew I wasn’t guilty, so I did a lot of praying.
I was in city jail for nine and a half months. Then, one day, I got a bail reduction. They took my bail
from $250,000 to $75,000 cash, so my family bailed me out. I wound up going to court about a month
later and I beat the charges. The guy who was shot altered his statement and signed an affidavit where
he told the truth, that I didn’t shoot him. The guy who said he saw me shoot him changed his statement, too. He said that he said I did it because he’d committed a crime and he was trying to protect
himself; the police said they’d cut him a break if he gave them some information. In the end, they both
got locked up for murder. When I came home in 2001, I had ambition. My ambition was to start work-

“

“

Community Member

ing and definitely go back to school and get my diploma because you can’t get no diploma in prison; at
that time, they wouldn’t let you. I was in city jail, not prison, so there was no school. That was the foremost thing. I wrote to the school board, then I enrolled and wound up going to the Houghton Institute.
I graduated and obtained my high school diploma, so that was a plus. Then I started working.

B A IL FA IL

•	

In California, at the end of the first quarter in

evidence to support this idea. And, while a judge

2012, 47,155 people in county jails were not

may have reason to detain a person out of con-

convicted and are waiting for their trial date.

cern for community safety and thus set a high bail

This represented 64 percent of the total jail

amount, the defendant still may be able to raise the

population. These people were held at an es-

money needed to pay his bond. Or, a for-profit bail

timated $100 per day while pretrial programs

bondsman may recognize that a 10 percent fee off

could have provided supervision at $2.50 per

a high bail amount will result in a hefty profit and

person each day.

decide to take a risk in releasing the defendant in

50

51

•	

•	

A Florida State University study reported that

order to continue to his business.

pretrial release supervision in selected Florida

From the perspective of people who are victims of

counties cost $1.48/day per person, and de-

crime, even large bail amounts provide no reas-

tention cost $107.71/day simply for housing.

surance that the person charged will be kept from

Preventing just 50 percent of the jail population

harming others. People who are victims of crimes

from ever going into jail (through pretrial diver-

and their advocates provide a unique perspective

sion or pretrial services) would have resulted in

in what an ideal pretrial process would look like,

a cost savings of over $210 million in 2010.52

as many of them are seeking true justice to be done

An evaluation of a pretrial service program in
Iowa showed increased safety and court appearance along with reduced technical violations of
pretrial release conditions. While detention cost
$19,253, release to pretrial services cost $3,860
resulting in a savings of $15,393 per person
released. The total cost savings due to pretrial
services from 2008 to 2009 was $5.3 million.53

MONEY BAIL DOES
NOT INCREASE
COMMUNITY SAFETY.

regarding the harm caused to them. Many are also
concerned with preventing similar offenses from
occurring in the future either to themselves or others. While other parties are motivated in their work
by a desire to reduce caseloads, increase financial
gain, or other procedural concerns, victims can
help shape policies that will optimize safety in the
community. From this perspective, a few considerations are offered from Dr. Will Marling at the National Organization for Victim Assistance:54
•	

Victims have real concerns pretrial. These concerns revolve around their physical, emotional
and financial safety. Although risk assessments
and pretrial services are probably going to

The Bail Reform Act of 1984 provided that courts

reduce harm more so than simply releasing a

may make considerations for the safety of the com-

defendant on a cash bond, the pretrial process

munity in bail decisions. Although a person in the

should be thorough to ensure the safety of vic-

pretrial process may or may not be one who com-

tims by taking their concerns into account for

mitted the offense, there are still a number of pre-

release decisions.

cautions that should be taken into consideration to
ensure no further harm is done. The judicial system
predominately depends on money bail to ensure
safety and appearance at court on the premise that
putting up a money bond will incentivize people
to return to court. However there is no empirical

•	

The use of money bail can actually perpetuate
the impact of the offense, especially financial
offenses, where money has been taken from
the victim. The use of that money to pay a cash
bond or surety bond fee can further exacerbate

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justice policy institute

the effects of that offense and make it more

has a measure of discretion in determining how

difficult for the victim to regain what is right-

money bail will be used in the criminal justice pro-

fully his.

cess. Consequently, each jurisdiction differs on how

As stated above, money bail is widely believed to
incentivize a person’s return to court; however,
despite the use of money bail at increasingly higher

they determine what types of bail to set, how much
money bail is set, and methods of allowable payment to secure one’s release.

amounts, failure to appear rates have not changed

In an effort to standardize aspects of the bail

substantially. Whereas in the 1960s and ‘70s, the

process, some jurisdictions use “bail schedules”

failure to appear rate among the most populous

or “bond schedules” to determine money bail

cities was 6-9 percent , the failure to appear rate

amounts as it relates to the alleged offense. These

55

for felony cases was at 22 percent in 2006. Failing

schedules may be legislatively mandated or used

to appear for court causes increased workloads for

informally, and they are intended to standardize

court staff, issuance of arrest warrants, incarcera-

how much a bail is set regardless of the person’s

tion on minor offenses for people who are non-

personal characteristics or demographics.57 There

compliant and longer jail stays in connection with

is no official guideline for judges and officials who

the present offense or future offenses. Failure to

make up the schedules; consequently, even within

appear on misdemeanor cases also results in the

a state, the amount of bail set for a charge may

loss of revenues from unpaid fines and fees.

vary by county. Often, the bail set does not match

56

Data from 2006 on felony defendants of the 75 most

the severity of the charge, with amounts greatly

populous counties showed that about 12 percent
were on pretrial release. This includes people released after posting a money bond or a surety bond
through a for-profit bail bondsman. Many pretrial
service agencies have implemented programs
showing very high rates of success in lowering rearrest of individuals awaiting trial and, if further
expanded in the 75 most populous counties, it is
likely that the rate of people arrested while awaiting
trial could be reduced substantially. For example, a
program begun in Santa Cruz County, California,
showed that 92 percent of defendants under supervision were not re-arrested for new offenses.

The use of money bail is arbitrary
and not guided by the use of
risk assessments or national
standards.
A major barrier to understanding the extent and
impact of money bail is that it is used differently in
various states, counties, and cities. Each jurisdiction

“Ultimately, the justification for bail is to
provide an incentive for a defendant to
return to court to face trial by imposing
a monetary penalty if he doesn’t. In a bail
bonds system, once the bondsman is paid,
the defendant no longer has any incentive
to return to court, because he will not be
getting any money back if he shows up for
court, unlike if he posted bail himself. So
the justification for bail is undermined by
the bail bonds system. No bail will ensure
that a defendant won’t commit another
crime while waiting for trial, and that, to
me, is the crux of the decision of whether
or not to release a defendant. Is it a public
safety risk to release this individual? The
overall amount of bail is irrelevant to this
decision. It is only relevant to the decision
as to how much incentive this defendant
needs to return for trial.”
–page croyder, former baltimore city prosecutor

B A IL FA IL

exceeding the potential cost of damage or loss. The

Despite the unknowns around the effectiveness of

bail a person could potentially receive for a basic

bail schedules, they are still relied on heavily due

drug possession charge would vary across the

to the general acceptance of money bail in the judi-

states as follows:

cial system. A 2009 study of 112 of the most popu-

•	

In California, an ACLU study found that 58
different bail schedules are in use across the
state. For a drug possession charge, bail may

•	

the participating jurisdictions utilized a bail schedule when determining money bail amounts.60

vary by $20,000 depending on the person’s

“Each accused is entitled to any ben-

location. Recommended bail amounts for drug

efits due to his good record, and mis-

possession are $5,000 for people in Fresno

deeds or a bad record should prejudice

or Sacramento, $10,000 in Los Angeles, and

only those who are guilty of them. The

$25,000 in San Bernardino.58

question when application for bail is

In Maryland, a bail schedule is not used and
non-judicial court commissioners make bail
decisions based on a number of different factors as required by legislation, including the
nature/circumstance of the offense, person’s
prior record, community ties, a recommendation from the State Attorney’s Office, if
provided, and more.59 Therefore, individuals
charged in Maryland with drug possession
likely will have different money bail amounts
depending on the court commissioner who
processed their case.

•	

lous counties in the U.S. showed that 64 percent of

In Washington, D.C., agencies depend on
various non-financial release options instead
of relying on money bail. Those with a drug
possession charge would likely receive a conditional release that would potentially involve
supervision, drug treatment, or some other
requirement to encourage the defendant’s return to court as well as to assure the safety of
the community.

made relates to each one’s trustworthiness to appear for trial and what
security will supply reasonable assurance of his appearance.”
—U.S. Supreme Court Justice Jackon
Another concern for bail schedules is that, if they
are required to be used, judicial discretion in the
bail setting is limited. In 1951, the United States Supreme Court wrote in Stack v. Boyle that “the fixing
of bail for any individual defendant must be based
on standards relevant to the purpose of assuring
the presence of that defendant.”61 Additionally, by
depending on bail schedules, the justice system
plays into the hand of the for-profit bail bonding
industry, which makes a percent profit depending
on the amount of the bail set. Additionally, bail
schedules may distract jurisdictions from the need
to use valid risk assessments and release by other
options than money bail, such as a conditional release that includes monitoring and supervision. As
has been shown elsewhere in the criminal justice
system, the seriousness of an offense (or alleged

The use of bail schedules is problematic because

offense) is not on its own a proxy for risk for re-

there is no definitive association between a par-

offense,62 or in the case of pretrial, failure to appear.

ticular accusation and the amount of money that
would guarantee appearance at court (or deter
future criminal activity) for that offense. Hence, the
bail amounts are arbitrary and guarantee neither
safety in the community nor appearance in court.

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justice policy institute

Money bail also poses
adverse risks to those
who have been charged
with offenses.

People without access to counsel at
bail settings may receive high bail
amounts that result in their detention.

The liberty of people accused of
offenses is at risk when money bail
can be used to force a detention.

interrogations, initiation of adversarial process

Judicial officials can use money bail to
force a detention without a conviction.

judicial criminal proceedings, show-ups at or after

The 1984 Bail Reform Act provided that judicial

application of the Sixth Amendment, which assures

officials could consider the safety of the commu-

the right to an attorney, is largely neglected as many

nity when setting bail. However, due to the Eighth

jurisdictions “instead rely on their own sense as to

Amendment which assures that bail should not be

when counsel should be appointed, if at all”.65 As

used excessively, many states have laws regulating

of 2011, only ten states and the District of Columbia

the use of pretrial detention except when setting

provided for indigent access to counsel at initial ap-

bail for capital offenses. As a result, many judicial

pearance before a judicial official and ten states had

officials who consider a person a threat to the com-

no provisions for indigent defense at this stage in

munity may circumvent laws against pretrial deten-

pretrial proceedings. The remaining 30 states pro-

tion and instead assign a very high money bail that

vided indigent access to counsel that varied among

they believe a defendant will not be able to pay.

different jurisdictions.66 The concern with the rise

Since 1963, a number of court rulings provide
for access to counsel at various stages prior to a
criminal trial, including the following: custodial
and without regard to involvement of the prosecutor, critical stages pretrial, including preliminary
hearings, lineups at or after initiation of adversary
initiation of adversary judicial criminal proceedings, arraignment, and plea negotiations.64 Yet, the

This means that despite the laws regulating detention of individuals prior to conviction, bail can now

tive options, and more, that could keep people who

“If you get locked up for 100 pieces
of crack, that doesn’t mean you
are Pablo Escobar. If I’m walking
around with 100 pieces of crack,
that’s $1,000. That means I’m a
petty hustler. So if I got caught
with $1,000, why would you charge
me $250,000 to get out on bail? I
might have put all my money there
and then got locked up, so that’s
all I have. How can I afford that if I
only have $1,000? You’re charging
me $249,000 more than I have.”

might cause further harm in detention without de-

–travon alston, community member

be used as a way to keep a person from being able
to leave jail. This coercive way of keeping people
in “preventive detention” not only violates rights
to liberty, but it also does not guarantee safety. The
way that preventive detention is currently administered in many jurisdictions, i.e., without a valid risk
assessment or other standardized way of processing
people accused of offenses, is not proven to be effective nor grounded on a solid theoretical basis.63
However, little research has been done to measure
the impact of preventive detention that is conducted in a standardized, meaningful way, including
objective assessments, consideration of less restric-

pending on financial means to keep them there.

B A IL FA IL

in the use of money bail is that liberty is granted to

Office and $83 million for prosecutors across Mary-

those who can afford to pay bail or those who can

land.71 Three months later in April, 2012, the ruling

pay a percentage to a bondsman, should they find a

was amended to require legal representation only

bondsman willing to take their case.

at the second bail hearing, if held, when an actual

A primary barrier to ensuring access to counsel at

judge would review the first bail decision.

the bail setting is that states and jurisdictions lack

“Conservation of resources” now trumps constitu-

the financial resources to staff the number of public

tionally guaranteed court proceedings so much so

defenders needed at this stage. 67 Recent develop-

that “each pretrial step will explicitly tolerate a mod-

ments in the state of Maryland provide a good

est amount of error”.72 However, these errors lead to

example of the challenges that may be encountered:

high bail amounts, unnecessary detention, and a cost-

In Baltimore, Maryland, an 18-month pilot project

ly pretrial system that communities cannot sustain.

where law students provided legal counsel at bail

In at least one state—the state of Oklahoma—the use

setting for 4,000 indigent or low-income defendants

of money bail can lead to people not being able to get

charged with nonviolent offenses showed positive

legal representation for their case. Essentially, people

benefits. The outcomes of this project revealed that

of low income must chose between paying or getting

representation by legal counsel led to 2.5 times

help to pay for their money bond or getting a public

more releases on recognizance when compared to

defender. The statute currently on the books states

defendants without representation. If money bail

that anyone who pays a money bond or gets some-

was used, legal representation led to bail amounts

one to pay the money bond on their behalf (whether

that were affordable for the defendant. Further-

that be a for-profit bail bondman or family members)

more, legal counselors were able to provide judicial

subsequently will not meet the criteria for “indigent”

officers with information and clarifying details

and thus will not be provided a defense attorney.73

without putting people accused of offenses at risk
of making incriminating remarks. Counselors were
able to effectively advocate for the defendants’
trustworthiness and ties to the community without putting his or her employment, loved ones, or
housing in jeopardy68 while increasing the number

An inability to pay the money bail
may coerce people to plead guilty
so that they can get out of jail
sooner despite being innocent.

of defendants released on recognizance. Due to the

People detained due to money bail are put under

project’s impacts, researchers concluded that the

greater pressure to enter a plea bargain, which has
become the de facto standard in resolving more than

lack of representation at the first bail setting was
the leading reason for lengthy pretrial detention.

69

The Maryland Court of Appeals decided in January
of 2012, in Dewolfe v. Richmond, that public defenders
should provide legal representation at the first bail
setting. However, the public defender’s office could
not bear the burden of the additional 108,000 hearings added to their workload through this unfunded
mandate.70 Compliance would reportedly require
an additional $28 million for the Public Defenders’

95 percent of cases each year. Prosecutors are often
overburdened with the expectations and demands
of their position along with massive caseloads.
Prosecutors can and often do ask judges for pretrial
detention as leverage in plea-bargaining discussions with people of limited financial resources.
People with children at home, a job or housing at
stake, or a desire to avoid the hard conditions of
jail could be and have been coerced into entering a
guilty plea to avoid pretrial detention, particularly

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justice policy institute

if the time they have already spent will count

remains unaccounted for in the community and has

toward the prospective sentence. This not only

not been held responsible for his or her actions. The

fulfills the prosecutor’s mission of closing another

high faulty conviction rate also skews research that

case with a “win”, but it enables the criminal jus-

seeks to determine or predict which individuals may

tice system to function. Should a greater number

be at risk for committing future crimes or harming

of people seek to maintain their innocence through

the community. Instead, researchers are just getting

a jury trial, the criminal justice system would not

a good idea of which people are more likely to plead

have the capacity to bear the case loads.75 Obtain-

guilty regardless of their guilt or innocence.

74

ing quick plea bargains keeps the system moving;
consequently, conviction rates may be high, but
justice is not necessarily served.

The fact that first time defendants are convicted and
sentenced more harshly than those with previous
convictions82 affirms that there is a problem with

“We see clients at arraignment not

this procedure of obtaining convictions. All of these

wanting to plea, saying they want to

examples show how pretrial detention is wielded

fight their case. Then they hear the bail

to serve purposes other than assuring court appear-

that the prosecutor is going to ask for,

ance and safety of the community. This is an abuse

and they’ll turn to their defense lawyer

of power that leads to wasteful use of taxpayer dol-

and say, ‘I’ll take the plea’.”

lars, unfair treatment of individuals based on finan-

—Robin Steinberg, Bronx Defenders.76

cial resources, and violations of constitutional rights.

Conviction rates for people charged with felonies
stood at 68 percent in 2006 with 96 percent of those
convictions a result of guilty pleas. Only 3 percent
of those cases actually went to trial.77 This high rate
of guilty pleas is of concern because people often
will plead guilty despite their innocence. A 2012
study suggested that in an effort to avoid the ominous maximum penalties of a potential conviction
in an inherently coercive78 and unfamiliar system,
more than 50 percent of innocent defendants pled
guilty to get a lower sentence rather than risk a
conviction, albeit faulty, that would lead to the
maximum penalty.79 This means that in 2006, over
16,875 people could have been wrongly convicted.80
Particularly in the face of mandatory minimum
sentencing rules, people have a strong incentive to
take a “lesser” deal from a prosecutor if they fear
the defense (which may be an overburdened public

However, many are in a position to recognize their
power in reducing the burden on the criminal justice
system by approaching prosecution with system
outcomes in mind. For example, prosecutors in
Kings County, New York, established a re-entry program to reduce the number of repeat offenders they
encounter in their work. The emerging role of the
“21st century prosecutor” is primarily to ensure public safety, which is expected to include safeguarding
civil liberties, enhance capacity through community
collaborations, ensure justice is served,
and hold the public’s
trust.83 Prosecutors
who understand and
support pretrial policies and practices that
have been proven

defender) will not be able to prove their innocence.81

more effective than

Plea bargains can greatly compromise the safety of

ing their communities

communities. For every person that falsely pleads

a tremendous service.

guilty, the person who truly committed the offense

money bail will be do-

ONLY

3%
of felony and

misdemeanor cases
went to trial in 2006.

B A IL FA IL

part 5

Effective Alternatives to
Money Bail

There are alternatives to money bail that improve outcomes for people
awaiting trial and the community. Public opinion shows support for diverting
public resources into more effective strategies rather than simply locking up
people unnecessarily.
A Pew Center on the States study showed that

impacts of money bail on low-income popula-

84 percent of surveyed American voters believed

tions while safely decreasing the number people

that community-based programs could be bet-

held in pretrial detention.

ter used instead of relying on incarceration for
people convicted of low-level, nonviolent offenses.84 A study of people in a large, Southern metropolitan area showed that 60 percent believed
that writing a citation would be preferred over
arresting a person for a low-level, nonviolent

Valid risk assessments can
provide risk-supported decisionmaking and eliminate the need
for money bail.

charge. They also supported the idea of releasing

Although the use of pretrial risk assessments is in-

people to pretrial supervision over requiring a

tuitive and has the foundation of more than 30 years

money bond or releasing on recognizance alone.85

of research, the practice of assessing risk in deter-

There are a number of strategies, many of which

mining pretrial release and bail setting is not com-

are highlighted below, that reduce the negative

monplace. Field experts estimate that only about 85
jurisdictions in the U.S. are using a validated risk assessment in their pretrial
release determinations.86 However, the
use of valid risk assessments and release
options other than money bail is crucial
for reducing the number of people held
in jail while awaiting their court date
while assuring safety in the community.
Risk assessments support the release
of people who can safely remain in the
community pretrial (with or without additional conditions), and provide insight

27

28 justice policy institute

Tyriel Simms
It’s not easy to stay out of trouble in Baltimore City. Even the best of us end up in trouble.
I have an extensive arrest history, but I do not have an extensive conviction rate. That’s normal for
living in Baltimore City. It’s normal to be arrested for something that you didn’t do, to be looked at as a
problem. It’s normal to be in the wrong place at the wrong time, which is everywhere. And it’s normal
for guys to accept convictions for things that they didn’t do. People want to go home, and they can’t
afford proper representation. So they get the public defender. How does he represent you? You probably never met him until your court date. Probably didn’t review your file until that morning. He doesn’t
know your name, and then you go to court, and he’s asking you what you are going to do. You’re saying, “I’m innocent. I’m fighting this to the end. I really didn’t do this.” And he’s like, “This is the state’s
offer.” I have broken the law, but I would say 80% of my arrest history has been for something I didn’t
do. Of course I took the pleas. By the time you go in front of this judge, he’s had 20 cases of the same
charge. How different do you look?
You’d be surprised what a zip code can do to you in court. 21230 is a profile zip code. “Where does he
live? 21230? Get him out of here.” And then you are taking a plea to get out of the city jail, which is the
worst place ever to be.
The last time I was arrested, I was initially offered $150,000 bail, and then the judge changed it to no
bail because he was in a bad mood. He said that. They say whatever they want to say to us. The toughest guy, the most confident person, is broken down in front of these judges, because they have the
power to use that pen. It’s not a sword; it’s a nuclear bomb. They could ruin your life at any time, and
you have to put in the work time and money to get it back. You’ll be surprised how many guys come
home after doing 80 percent of a 25-year sentence in the law library trying to find out their innocence.
You have to put all those years in just to prove that you’re innocent. You have to prove that yourself.
A guy might need $500 to get home, and he might not be able to afford that. And he might be innocent.

“

“

Community Member

If you are to give someone bail, some of the guidelines need to be changed. It might need to be based
on your house or income or something of that sort. They have some pretrial opportunities that I have
heard of. I think that they might be able to go home, for pretrial home detention. But, that standard is

the highest. I’ve applied for it almost every time, and I have never gotten pretrial home detention. For
some of the pettier charges, like simple possession charges, why wouldn’t they be allowed to come
home and be put in a work program? Or make them do some type of volunteer work. At least give
them a step forward in some kind of way.

B A IL FA IL

into the possible need to detain people who may
pose a safety or flight risk. Few states have codified
the use of risk assessments, but more are beginning
to implement the use of these tools.
Risk assessments are tools that, when used properly, can provide a dependable prediction of whether
a person will be involved in pretrial misconduct,
whether by failure to appear in court or being a
danger to the community. Typically in the form
of an electronic or paper survey, risk assessments
provide a way to make an objective assessment of
the person being charged with an offense while
minimizing any possible bias on the part of the
interviewer. The assessment findings provide a
classification, usually “low risk”, “moderate risk”,
or “high risk,” which aid in determining the most
appropriate form of bail and pretrial supervision.87

PAGE CROYDER,

Case Manager at Baltimore
Outreach Services; Former
Baltimore City Prosecutor
To me, the harder cases
are the non-violent cases.
If you have a guy going
into McDonald’s with a gun and robbing people,
I’d be hard-pressed to say that person should be
released pending trial. And yet those people are
given bails. For non-violent crimes, we could make
greater use of home detention enforced with electronic monitoring, daily reporting to somebody, and
so forth. Instead of setting a bail, maybe the alternative is, you’re confined to your house and you
have to wear this bracelet. That’s much better than
locking somebody up.

population not only supports the use of risk as-

The really hard decisions are not in the bail
amounts, but in who is what kind of risk. As a system, we have almost stopped thinking about that,

sessments in bail determinations but also believes

when it should be the first focus of bail reform.

Opinions research shows that the general U.S.

that risk assessments are routinely used. The public expects that such a practical tool would be used
in determining bail.88

Several states are using validated risk assessments
or are conducting the research needed to have the

The reluctance to implement risk assessments

appropriate tool in place. Although several factors

broadly may stem from an incomplete understand-

are consistently valid across different localities, it is

ing of their proper role and use. Some professionals

still important that each state evaluate its risk as-

in the field express concern that risk assessments

sessment to ensure each factor is accurately predict-

may not account for the individual case character-

ing pretrial conduct within the parameters of that

istics that they believe will affect pretrial outcomes.

state’s laws and environment.

However, years of risk assessment studies have
confirmed a number of factors that consistently
predict pretrial misconduct across a variety of
charge types and localities. This means that the risk
assessments which are validated, meaning tested
for accuracy for each jurisdiction, can provide reliable information for pretrial decisions. This information can be used to increase objectivity in the
pretrial decision-making process and serve as a tool
to move away from financial bail in favor of appropriate pretrial supervision.

VIRGINIA: Development of the Virginia Pretrial
Risk Assessment Instrument (VPRAI) began in 1998
and by 2005, the state had implemented it in all
pretrial service agencies. In 2007, a validation study
was conducted on the tool showing that it appropriately categorized people charged with offenses
by risk level and accurately predicted pretrial behavior. Additionally, this study revealed that measuring “outstanding warrants” did not improve the
accuracy of the tool so the list of factors assessed
was reduced to the following: primary charge type,

29

30

justice policy institute

The Bail Reform Act of 1966 provided 9
criteria to be included in pretrial risk
assessments:
1. Nature and circumstance of the offense
2. Weight of evidence
3. Family ties

pending charge(s), criminal history, two or more
failures to appear, two or more violent convictions,
length at current residence, employed/primary
caregiver, and history of drug abuse.

Florida: In 2011, six counties participated in the
validation of a pretrial risk assessment tool based
on the Virginia Pretrial Risk Assessment Instru-

4. Employment

ment. This study showed positive results in catego-

5. Financial resources

rizing defendants appropriately for pretrial release.

6. Character and mental condition

The success rate (defined by court appearance and
no re-arrest for new charges) was at 87%. The re-

7. Length of time at current residence

sults showed that this tool is likely to be effective

8. Record of convictions

in other counties in Florida and efforts to broaden

9. Appearance record at court proceedings

implementation are underway.

Kentucky: Since 1976, it has been illegal to post
Barry Mahoney, and others, “Pretrial Services Programs: Responsibilities and
Potential,” National Institute of Justice: Issue and Practices, March 2001

a bond for profit on behalf of a defendant in Kentucky.89 In 2009, the state of Kentucky validated
an instrument that had been in use for years. This
tool was edited to include only the most predic-

Risk assessment factors validated by
multiple studies:

tive factors resulting in a twelve item Yes/No
checklist with weighted questions allowing a sim-

1. Prior failure-to-appear

ple capture of information indicative of a person’s

2. Prior convictions

behavior on release while awaiting trial.

3. Present charge a felony

Risk assessments should be conducted as soon as

4. Being unemployed

possible after arrest to capture the most accurate

5. History of drug abuse
6. Having a pending case

Other factors supported by research:

information.90 They also show that conditions for
release must be carefully applied, particularly to
low-risk populations. (More on this is provided in
the Conditional Release paragraph below.) Risk assessments that are pages in length and/or require

1. Active community supervision at time of arrest

lengthy training or certification to be used will not

2. History of violence

be a practical solution for pretrial assessment needs

3. Residence stability

in most areas. Some jurisdictions also utilize risk
assessments developed for predicting behavior of a

4. Community ties

person leaving prison on probation or parole. It is

5. Caregiver responsibilities

important to recognize the differences in the situ-

Cynthia Mamalian, “State of the Science of Pretrial Risk Assessment,” Pretrial
Justice Institute, March 2011; Marie VanNostrand and Kenneth Rose, “Pretrial
Risk Assessment in Virginia: The Virginia Pretrial Risk Assessment Instrument,”
May 2009.

ations and populations being assessed and understand that risk assessments intended for re-entry
will not predict with the same accuracy the behavior of those awaiting trial.

B A IL FA IL

The use of citations instead
of arresting and transporting
individuals to be booked at a
facility can provide a cost-savings
to the community.

Many people can be safely
released in the community on
their own recognizance while
awaiting trial.

The use of citations has been recommended since

risk generally complete the pretrial process success-

the 1920’s to reduce arrests and subsequent de-

fully by attending their hearings and not having

pendence on bail bondsmen. Current models

any incidence of re-arrest. They also are more likely

using citations include a risk assessment compo-

to complete the pretrial process successfully by

nent (either completed by the police officer or a

not having additional court-ordered expectations

pretrial services agency), which allows officers to

placed on them92 as they are already attending to

confirm that the individual would be an appropri-

other responsibilities. This means there is a large

ate candidate for a citation versus going through

proportion of people accused of offenses that can

the booking process at a jail. Technology allowing

be released on their own recognizance and trusted

for fingerprinting and positive identification of

to comply with pretrial requirements of attending

people charged is now available to assist law en-

court and avoiding re-arrest.

forcement officers in this practice. At this time, the
state of Kentucky has codified the use of citations
and is currently in the process of releasing their
jurisdictions that have begun to increase the use
of citations include Maryland and the District of
Columbia. A 2012 survey found public support for
fenses as seen in the following graph:91

Percent of respondents totally
in support of citations

60%

People rating higher on the risk assessments generally are not as likely to be released on recognizance and usually are left with the only option of

evaluation findings for this intervention. Other

citations in lieu of arrest for various types of of-

Risk assessment studies show that those rated low-

posting a money bail (either by posting their own
cash or acquiring the services of a for-profit bondsman). However, the irony is that those who have
no financial support rate higher on the risk assessment and, hence, are more likely to be required to
post a money bond in order to be released pretrial.

Support is strong for giving citations instead of arresting
and booking for some offenses.

54%

50%

51%

46%

46%

44%

40%
30%
20%
10%
0
Possession of small amounts of marijuana
Reckless driving

Driving with no operator's license

Driving while license is revoked

Disorderly conduct

31

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justice policy institute

One study revealed that those with financial sup-

are already attending to other responsibilities.

port were almost two times more likely to be re-

Conditions are generally more useful for people

leased on recognizance and having a high school

who score at high risk on their risk assessment;

degree provided a greater chance of being released

however, judicial officers should also take care

on recognizance.

to place requirements that match the needs of

93

One of the negative pretrial outcomes that judicial officers are trying to avoid is failure to appear in court as this disrupts already overbooked
court schedules. However, many missed court
appearances are not due to flight but simple interruptions to life. Common reasons given for
missing a hearing include forgetfulness, over-

the person accused of the offense.97 For example,
an individual without substance abuse problems
or a history of substance abuse may not need to
be required to undergo alcohol testing; adding
such an unneeded condition could cause an unnecessary technical violation should the defendant forget to show up for a screening.

sleeping, starting a new job, being told the wrong

The voice of the victim advocates community

court room, and needing to take a family mem-

should be included when formulating conditions

ber to the doctor. Recognizing these issues may

to ensure that no further harm is done. Particu-

help lessen the severity of a missed court appear-

larly in cases of domestic violence, the intimate

ance and encourage the use of this cost-effective

partner/spouse may provide a perspective that

release mechanism.

is not intuitive but safer if a person charged with

94

domestic violence is released. For example, defen-

Conditional release can expand
the pool of people who may be
safely released while awaiting trial.

dants in domestic violence cases are often released

When used in conjunction with a valid risk as-

have the accused person in the household, resum-

sessment, judicial officers may safely release

ing a level of responsibility, rather than outside

some people with conditions that will ensure

the home and cut off from all communication. At

return to court and safety in the community.

times, a victim may feel safer to have the lines of

Common conditions used by judicial officers

communication open. These types of consider-

include alcohol and/or drug testing, holding

ations may not be obvious to someone who has

or getting a job, working towards a diploma or

not experienced domestic violence or worked with

degree, curfews, no contact with victims and/

victims of violence, so it is important that victims

or witnesses,95 and remaining under the super-

and victim advocates have a role in the pretrial

vision of a family member, community service

release decision-making process.98

on the condition of no contact; however, at times,
a no-contact order may exacerbate the situation.
There may be times where a victim would rather

organization, or pretrial services agency. However, judicial officers should take precautions
to match the conditions with the level of risk
determined by the risk assessment. Placing inappropriate or unnecessary conditions on people
with low risk ratings, such as drug testing or
additional supervision, results in higher failure

Effective pretrial service agencies
can provide the risk assessment
and supervision needed to monitor
defendants as needed prior to
their court date.

rates.96 It is recommended that minimal condi-

Pretrial service agencies have a demonstrated re-

tions be placed on people who pose less risk and

cord of reducing pretrial jail populations, assuring

B A IL FA IL

appearance at court, and maintaining safe behavior

and 738 fewer people were held in pretrial deten-

among their clients. This is accomplished by pro-

tion. An increase of 12 percent of people were

viding three main services: risk assessment, bail

released on non-financial bail options, such as

recommendations, and supervision. Most pretrial

ROR, and the number of people held because

service agencies have an assessment tool they will

they were unable to make bail dropped from 34

administer to determine risk for failing to appear

to 25 percent. While the release rate of high-risk

at court and engaging in illegal behavior while

defendants remained steady, release of low and

awaiting trial. Usually under very strict time

medium risk defendants increased to 84 percent

constraints, pretrial agency staff members will

and 66 percent, respectively. Despite the increase

conduct a fact finding to assure the information

in releases, the appearance rate rose slightly from

gathered from all parties is true. They will then

90 to 92 percent and the public safety rate (those

make recommendations to judicial officers regard-

not charged with a new offense) rose from 90 to

ing the best bail decision for the person accused of

94 percent. Kentucky’s pretrial service agencies

an offense. If the person is released under a condi-

received an additional 1,285 referrals while seeing

tion of pretrial service supervision, the pretrial

a 14 percent decrease in arrest among people un-

service agency will then provide the supervision

der their supevision.100

services as needed in accordance to the risk assessment findings. Another component of services
that some pretrial service agencies provide (that
will not be examined here) are diversion programs
in which people agree to undergo programming

Court notifications are an effective
way to ensure people appear for
the court hearings.

in exchange for having their record cleared of

People in the community who have trials pending

their charge. Not all pretrial service agencies pro-

may miss their court date for myriad reasons that

vide diversion programs.

are unrelated to an unwillingness to appear, rang-

As of 2011, less than a third of the 3,007 counties
in the U.S. are served by about 300 pretrial service agencies.99 However, effective pretrial service
agencies have been safely saving jurisdictions
money since the 1960s by reducing the need to
house people in jail and effectively monitoring
them in the community prior to trial. One state
to embrace pretrial services and ban commercial bail is the state of Kentucky. This state has
recently expanded their pretrial service capacity
through passage of the 2011 Penal Code and Controlled Substances Act. This legislation provided
for increased pretrial release of people accused
of offenses, as well as, increased use of citations

ing from lack of transportation, uncertainty about
the criminal court process, or just plain forgetfulness. Pretrial service agencies have been effective
in reducing the number of failure to appears (FTAs)
for people under its supervision, but for the thousands of people who are released pretrial without
pretrials supervision, FTAs may still be a challenge
without a reminder of a court date. People who are
incarcerated because they failed to appear to court
are not generally considered to be a risk to public
safety and keeping them in detention is a drain of
public resources. Other localities who have implemented court date notification systems show promising results in reducing FTAs.

rather than arrests for misdemeanor charges.

In general, court notification systems have been

Preliminary results show that over 17,000 fewer

proven to reduce FTAs and save thousands in tax

cases were processed when compared to previous

expenditures.101 FTAs require a substantial amount

year case numbers (due to increased citations)

of paperwork, and add an extra burden to local

33

34

JUSTICE POLICY I NSTI TUTE

law enforcement of detaining those with warrants,

by 52 percent, from 23 percent to 11 percent.

overcrowding jails and increasing the daily cost it

In 2010, program specialists made over 16,000

takes to care for persons in jail.102 Implementing a

calls, 75 percent (over 12,000) of which were

court date notification system can help reduce fail-

considered successful. For successful calls, the

ure to appear rates, saving resources and reducing

average FTA rate for the year was 8.13 percent,

the number of people incarcerated.

never exceeding 10 percent. For unsuccessful
calls, the average FTA rate was 27 percent.103

Two forms of court notification systems are currently utilized by some jurisdictions—personal

Automated systems can provide automated phone

respondent systems and automated systems. Per-

calls, text messages, and emails for a large num-

sonal respondent systems can provide more in-

ber of people in a short period of time and do not

formation to defendants than automated systems.

require too much staff time. With these systems,

They can answer questions, saving both defendants

localities frequently contract out to private compa-

and court clerks’ time. These systems can be more

nies to provide a computerized telephone notifica-

expensive than automated systems as they require

tion system. Fees for automated calling depend on

more administrative staff time.

the vendor selected, and may be on a per call basis

•	

In Baltimore County, according to the Maryland Association of Local Management

•	

At about 12 cents per call, the Miami County,

Boards’ FY 2008 annual report, the Respon-

Ohio Municipal Court has reduced FTAs from

dent Notification Program of just one full

around 30 FTAs to 5 FTAs per week.104

time staff improved court appearance rates
by 15 percent (from 40 percent to 55 percent).
FTA writ admissions between October 2007
and April 2008 were down by 45.4 percent
when compared to the same time period one
year earlier. Additionally, overall secure detention admissions between October 2007 and
April 2008 were also down by 22.8 percent
when compared to the same time period one
year earlier.
•	

or a monthly contract.

The Sheriff’s Office of Jefferson
County, Colorado, has two fulltime employees dedicated to the
court notification program, and
they make about 50-100 calls a
day. Weekly dockets are around
260-270 per week, and all people
are called, except for those with
counsel. In the first six months of
the program, it reduced the FTA
rate of the targeted population

•	

The Los Angeles County Traffic Court’s automated program calls people three days in
advance of their traffic court appearances,
making an average of 700 calls per night. Since
the system went live at the end of March 2009,
traffic court failure to appear rates have declined 20 percent resulting in significant operational cost savings for Los Angeles Superior
Court at a time when cost savings are critical to
the Court’s continued operation.

B A IL FA IL

•	

Multnomah County, Oregon Circuit Court’s
automated system calls people up to three
times before each hearing and a 30-second,
pre-recorded message reminds them of the
time, date and location of their court hearings. In two years, FTAs in Multnomah
County dropped from 29 to 16 percent,
representing a nearly 45 percent decrease in
the number of people who did not show up
for court. The program, which was allotted
$40,000 in funding when launched in 2005, is
estimated to save up to $6.4 million worth of
staff time each year. In 2007 alone, the program saved Multnomah County $1.6 million
by reducing FTAs.105

Several other jurisdictions have reported dra-

MEASURES OF PRETRIAL
DETENTION SHOULD BE
IMPLEMENTED TO PROVIDE
NATIONAL MEASUREMENTS
OF OUR PRETRIAL
PROCESSES AND DRIVE
PRETRIAL REFORM EFFORTS.
“Considered in isolation, each shift
away from accuracy [in pretrial proceedings] is defensible, but collectively
the result is troubling.”
—Andrew D. Leipold108

matic reductions in FTAs due to court notifica-

Because national data for measures of pretrial per-

tion programs or pilots including Araphaoe

formance and outcomes are not collected, it is dif-

County, Colorado which saw a reduction in

ficult to understand how pretrial processes affect

FTAs from 21.4 percent to 9.9 percent in its

the system, develop meaningful policy to drive

county court and from 9.0 percent to 3.5 percent

change and protect effective services already in

in its district court due to its personal respon-

existence. The Bail Reform Act of 1966 was driven

dent system.

106

Due to funding ending in 2011,

largely by the compelling results of program pi-

they have continued to function with volunteers

lots and interventions implemented in New York

making calls to defendants prior to their court

City and elsewhere in the U.S. Consistent progress

date. Fourteen counties in Nebraska piloted a

toward effective, safe, and fair pretrial policies,

notification program that used mailed post-cards

however, will depend on a better understanding

to remind defendants of court dates and saw a

of the state of pretrial issues on a regular basis.

reduction of FTAs from 12.6 percent to

Gathering information for performance measures

9.7 percent.

is not an exercise in data collection but a way to

107

begin codifying beneficial policies that are not
driven by for-profit interests but benefit U.S. resi-

A court notification

dents through efficient use of taxpayer dollars and

program in Multnomah

improved safety. Items that should be reported

failure to appear rates by

number of risk assessment interviews, rationales

County, OR, reduced

45%

in two years.

on a national level include number of bookings,
for who is and is not assessed for risk, number of
release by type of release (financial versus nonfinancial options), and average length of stay of
people in pretrial, held in detention or released
prior to their hearing.

35

justice policy institute

Darian Watson

“

Community Member

I was in jail for one year before my trial.
The first thing I remember is getting off the paddy wagon and then the handcuffs being put on you.
That’s an experience in itself. The second thing I would say would be the whole routine, the strip
search thing. That can be humiliating, stripping down in front of a bunch of guys; then, being put in
solitary. It varies for different people, but for me, it was sixteen hours alone. I guess that was the procedure at the time, but I wouldn’t really know any better anyway—I was young. That was my first time going through the adult system, but I was still seventeen. Then I was placed on juvenile intake detail. This
is the time when they give you your first phone call. That was pretty much it for that first actual day.
I saw the bail commissioner when I was in that holding cell. There was no bail. So I was there for an
entire year after that. As soon as I knew that I was denied bail, it just set in: well, you’re not going anywhere. No chance. It was really devastating for my immediate family, and especially traumatic for my
mother. There was no hope of me getting out and my parents pretty much had the same attitude. I saw
my family maybe once or twice a week, if that, and only if the jail wasn’t on lockdown.
It would have been better if I had been released with some kind of supervision. You know, not just let
me out to do what I please, but have restrictions placed on me, like home detention. That would have
been better for both me and my family, and other aspects of my life. You know, being able to interact
with my family, be in their physical presence and assure them that I’m okay all while still being able to
attend school regularly.
I think there should be a more defined measure for how they determine who gets bail. And if possible,
it shouldn’t just be one judge who primarily handles all the bail decisions. That’s a lot for one person
to handle, especially if all they are doing is handling bail cases all day long. Me, personally, I didn’t
have any legal counsel at the time. You should have some legal counsel when you approach your first
bail hearing instead of just representing yourself. Everybody should be entitled to that, and even if you
have a lawyer, there should still be one on standby in case your lawyer is not able to make it. If you are
up there alone, you are going to get a whole lot of lip. You are as lonely as an island down there.

“

36

B A IL FA IL

National pretrial detention is
currently captured in a way that
is neither useful to the U.S. nor
amenable to comparisons with
other nations.
Currently, no data is being collected in a standardized way regarding pretrial detention across the nation for both misdemeanors and felonies. Specific
and consistent data on national indicators of pretrial detention are needed to better inform the United
States’ status in pretrial services on a yearly basis.
Although some data is collected through the State
Court Processing Statistics project, this data comes
from only the 75 most populous counties and usually is not published until many years after it is
collected. It also focuses on felony cases, precluding
an understanding of the impact of misdemeanors
on the pretrial process as a whole.
At this time, the information available about pretrial
populations is usually in the form of a percentage

that the large number of people incarcerated in the
U.S. minimizes the segment of that population that
is held while awaiting trial and masks the magnitude of people affected by pretrial detention.
Better measures to track pretrial detention
should be crafted to provide a more nuanced understanding of the United States’ pretrial population and provide a platform for meaningful reform.
In addition to measuring the size of the population
in the pretrial process, a national measurement of
how long people are in the pretrial process is also
important. Even if there are few people in pretrial
detention, if their length of stay is exorbitant, then
their Eighth Amendment rights could be violated.
Some realistic recommendations for measuring
pretrial detention include:110

VOLUME INDICATORS—Measuring the magnitude
of the population affected:
•	

numbers.

of the prison population. Using population percentages (such as the statistic that 60 percent of the jail

•	

of pretrial detention as the real meaning can be

Measure the pretrial population using rates per
100,000 in the general population.

population is currently held pretrial) does not effectively communicate the problems or successes

Measure the pretrial population using raw

•	

Measure the pretrial population using rates per
total incarcerated population.

masked in changes to the overall national population and changes to the general prison population.109

DURATION INDICATORS—Measuring how long

For example, the United States in 2009 was reported

people in pretrial are affected:

to have 21 percent of its prison populations in pretrial detention, meaning they were unsentenced. Other

•	

will provide an average time spent from arrest

countries reported having the pretrial populations

to conviction by the pretrial population. While

of their prisons as high as 69–97 percent. When rely-

handy for quick estimates, this number can be

ing on these numbers, it looks like the U.S. is doing

easily skewed by a handful of cases of espe-

a good job managing its pretrial populations. How-

cially lengthy detention.

ever, when considering the total number of people
held pretrial compared to the general population,
it is apparent that the U.S. held many more people
in jail pretrial than other countries. The U.S. held
158 people pretrial per 100,000 incarcerated people
while other countries held from 19 to 97 people
pretrial per 100,000 incarcerated people. This shows

Measure of the mean time spent pretrial—this

•	

Measure the median time spent pretrial per
person—this will provide the amount of time
spent by at least 50 percent of the population
pretrial. This number will better explain extent
of people impacted by pretrial detention. 111

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justice policy institute

Current pretrial data does not
provide clarity around the different
populations being held
in detention.
Jurisdictions can improve their data by clarify-

Measurement of pretrial outcome
and performance indicators could
reveal effective pretrial service
agency practices and areas for
improvement.

ing the proportion of their population that is held

Despite the billions of taxpayer dollars spent on

pretrial but not eligible for release due to factors,

pretrial detention, there are no national indicators in

such as having another case pending, etc. A good

place to measure the impact of pretrial release and

example is evident in the pretrial population at the

pretrial supervision on the justice system. Although

Los Angeles County Jail. About 70 percent of the

pretrial service agencies should be protected from

population in this jail is held pretrial and advocates

unreasonable and unrealistic demands for reporting,

use this number to estimate the cost-savings of

there are measures that can be used to reveal effective

potential pretrial services. However, in reality, 25

practice and areas for improvement. Accurate and

percent of the L.A. County Jail pretrial population

complete data collection can also help protect pre-

is sentenced on previous charges and have at least

trial services from unfounded criticism. In 2010, the

one pending charge. An additional 11 percent are

National Institute of Corrections’ Pretrial Executive

held without bail. This means that only about 34

Network developed and published a list of suggested

percent of those in L.A. County Jail are eligible for

performance and outcome indicators to guide pretrial

release under current statutes.

agencies in collecting data that could be aggregated

112

Clarity is needed regarding the pretrial population
held in “hold” categories, such as people in detention due to a violation of probation or parole, people in the Immigration and Customs Enforcement
(ICE) detention system, people awaiting extradition to other jurisdictions, and people held in jails
for the U.S. Marshals Service, to name a few. These
situations may disqualify a person from pretrial release; so including these cases in the overall pretrial
population may lead to inaccurate estimates regarding potential release and cost-savings. People
who have had their probation or parole revoked
pose additional considerations as their situation

into a national dataset. Their objective was to provide
a framework that would help agencies in gathering
the data needed to evaluate their performance against
organizational goals and justice system expectations.
With consideration of the agencies’ limited resources,
steps should be taken to standardize the data collection of these indicators so that the system can prove
its merit and benefit to society. These indicators were
developed to be in compliance with existing national
pretrial release standards (American Bar Association’s
Criminal Justice Standards on Pretrial Release 2002,
National Association of Pretrial Service Agencies’
Standards on Pretrial Release 2004).113

will differ depending on whether their arrest was

Considering the for-profit bail industry’s role in

due to a technical violation or a new charge.

jail populations and having such an important
role in determining who is released or detained,
private bail bonding companies should be required to report on similar indicators. Particularly
since for-profit bail bonding companies are only
concerned with failures to appear, it is especially
important to understand how well they perform
on other success indicators.

B A IL FA IL

Suggested Outcome and Performance Measures for Pretrial Service Programs

Outcome Measure

Appearance Rate

Safety Rate

Definition

The percentage of supervised defendants who make all scheduled court
appearances.

The percentage of supervised defendants who are not charged with a new
offense during the pretrial stage.

Concurrence Rate

The ratio of defendants whose supervision level or detention status corresponds
with their assessed risk of pretrial misconduct.

Success Rate

The percentage of released defendants who (1) are not revoked for technical
violations of the conditions of their release, (2) appear for all scheduled court
appearances, and (3) are not charged with a new offense during pretrial supervision.

Pretrial Detainee
Length of Stay

The average length of stay in jail for pretrial detainees who are eligible by statute
for pretrial release.

Performance
Measures

Universal Screening

The percentage of defendants eligible for release by statute or local court rule
that the program assesses for release eligibility.

Recommendation Rate

The percentage of time the program follows its risk assessment criteria when
recommending release or detention.

Response to Defendant
Conduct

The frequency of policy-approved responses to compliance and noncompliance
with court-ordered release conditions.

Pretrial Intervention Rate

The pretrial agency’s effectiveness at resolving outstanding bench warrants,
arrest warrants, and capiases.

Indicators as provided by “Measuring What Matters: Outcome and Performance Measures for the Pretrial Services Field,” National Institute of Corrections, August 2011.

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JUSTICE POLICY I NSTI TUTE

PART 6

RECOMMENDATIONS
There is no reason to continue the practice of requiring money in order to be released while waiting for a case to be resolved. That this practice continues seems
to be a testament to the resilience of the status quo and influence of industries that
stand to gain from the use of money bail. Considering that more effective ways exist to help people through the judicial process that better serve all those involved—
including the accused, victims and innocent people, low income communities and
taxpayers—the use of money bail in the U.S. should be discontinued.

1. ELIMINATE MONEY BAIL.

there is no use of for-profit bail bondsmen services.

Some U.S. jurisdictions have all but eradicated the

percent successfully complete the pretrial process

use of money bail in their pretrial justice process.

by appearing in court and not being rearrested.115

These jurisdictions typically have a robust pretrial services agency, validated risk assessments,
and other processes in place to assure defendants
return to the community safely and attend their
court hearings.

Case study: Washington, D.C.

The Pretrial Services Agency has reported that 88

While eliminating the use of money bail may be
challenging, it is possible to begin taking steps in
this direction through the following:
•	

bonding companies.
•	

all the provisions of the Bail Reform Act of 1966.

•	

Increase capacity to provide pretrial services
that include risk assessments and supervision.

Due to their extremely limited use of nonfinancial
bail options, for-profit bail bonding companies,

Replace bail schedules with validated risk
assessments.

Since 1968, the District of Columbia has had a robust pretrial services system which implements

Ban the use of for-profit commercial bail

•	

Implement a deposit bond program with the

although not banned, are nonexistent since there

courts. The state of Illinois implemented a

is not a market for their business.114 Due to close

10 Percent Deposit Plan in 1963 in order to

collaboration between the D.C. Pretrial Services

eliminate the need for for-profit bail bonding

Agency and law enforcement, corrections, and the

companies. Although money bail is still used,

judicial system, 80 percent of people charged with

the 10 Percent Deposit Plan allows defendants

an offense are released on nonfinancial bail options

to pay the “10 percent fee”, typically paid to

to await resolution of their charge while 15 per-

bail bondsmen as a non-refundable fee, to the

cent are kept in pretrial detention. Only 5 percent

courts with the agreement that they will be

are released using some form of financial bail, but

liable for the full bail amount if they fail to

M O N E Y B A I L A N D P E O P LE IN J A IL

SPURGEON KENNEDY

There’s no reason for money bail. It ought to be abolished.
One of the things that I get to do occasionally is ask judges across the country why they set bail. I get
some of the most inappropriate reasons that have nothing to do with why bail is supposed to be set.
“Well, I know this guy is going to get probation, so I’m going to show him what the inside of a jail looks
like.” Or, “I want his parents and his family to feel some pain about this.” Or, they like bail bondsmen;
they’ve always set money, so why do anything different? Unfortunately, money bail is the prevalent type
of release, or I should say detention, in this country. Most people in jail today are there because they cannot afford or will not post an amount of money that a judge set on them. Usually, that amount of money
has absolutely nothing to do with your risk of getting back to court or being a danger to the community.
One of the things that D.C. has that most jurisdictions don’t is a preventive detention statute. If you talk
to judges who use money a lot, one of the things that they will tell you is, “I don’t have an alternative.
There’s no other way for me to address a truly dangerous defendant.” In D.C., we’ve given judges that
option. Since 1970, we’ve had laws on the books that have allowed judges to hold those defendants
pretrial, by statute, if they believe that those defendants are too dangerous to be released back into
the community. That detention works in two stages: first, you make the initial decision that this person
qualifies for preventive detention. Second, you have what is called a preventive detention hearing,
where the defense and the prosecution present their sides and the judge decides whether the defendant warrants further detention.
About 15 percent of the defendants who come through our lockup here in D.C. are going to be detained pretrial by statute. So instead of a judge throwing out a cash amount and crossing his or her fingers that this is enough to keep you in jail, they have a statutory way of doing detention that respects
the defendant’s due process rights. It’s taken some time to implement, but it’s a much more honest
way of identifying those defendants who pose a serious threat to community safety. It’s a far more honest way of keeping them detained than money.
The other 85 percent are usually released on conditions of supervision. At some point, 5,500 or 6,000
defendants are under our supervision at any given time during the year. We supervise the majority of
defendants who do get released, and usually those conditions of supervision are things such as drug
testing; reporting to a case manager; for those defendants who we believe pose a greater threat to

“

“

DIRECTOR OF RESEARCH AND ANALYSIS,
PRETRIAL SERVICES AGENCY OF THE
DISTRICT OF COLUMBIA

community safety, we have the options of electronic surveillance, or more reporting to case managers;
we also have substance abuse treatment and mental health services connections when we assess
defendants under our supervision as needed.

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JUSTICE POLICY I NSTI TUTE

appear or are re-arrested prior to and during

harm done (for example, domestic violence issues

the trial process. They are refunded this 10

will be different than financial fraud issues), a sys-

percent fee, paying only a small administrative

tematic consideration of victim advocates’ perspec-

fee (typically 3 percent).

tive or guidance may help in determining the most
effective pretrial processes that will ensure safety to

2. BAN FOR-PROFIT BAIL
BONDING COMPANIES.
Four states have banned the involvement of forprofit, private citizen businesses in the judicial
process: Kentucky, Wisconsin, Illinois, and Oregon.
Around the U.S., various jurisdictions have chosen
to ban bail bondsmen even if their state has not,
such as Broward County, Texas,116 and Philadelphia, Pennsylvania. As money bail already presents
a number of problems, the addition of a for-profit
entity only serves to reinforce the practice of money bail. For-profit bail bonding companies have an
interest in preserving this practice as it is the source
of their income, at the expense of individuals and
their families, the criminal justice system, and taxpayers. In the event that a financial release option
is used, it is more just to process the bond through
the court in a way that will not cause the defendant
to lose a portion of that bond through fees to a forprofit bondsman.

3. INCLUDE THE VOICES
OF ALL INVOLVED PARTIES
TO ENSURE THAT REFORMS
TO THE PRETRIAL PROCESS
ARE MEANINGFUL AND
EFFECTIVE.

the community. Victim advocates will also be supportive in creating a more just process as victims
are interested in seeing the person who actually
committed the harm be held accountable.

4. EXPAND COMMUNITY
EDUCATION PROGRAMS,
SUCH AS THE NEIGHBORHOOD DEFENDANT RIGHTS
PROGRAMS, THAT INFORM
PEOPLE IN THE COMMUNITY
ABOUT HOW TO NAVIGATE
THE PRETRIAL PROCESS.
The confusing and inherently coercive pretrial
process is challenging even for those with adequate financial resources and educational background. Understanding the process, legal rights,
and what to expect could help people navigate
the part of the case process more successfully.
This is particularly important since the portion of
the process is so important to the outcomes of the
case. However, many people may be susceptible
to fallacies in the pretrial process since they are
concerned about responsibilities outside the jail.
At that point, it is difficult to estimate the collateral consequences of a criminal record beyond
the immediate impact of losing a job or not being
there to take care of a dependent. Informing com-

As victims and their advocates provide a unique

munities of this process and the implications of

and critical understanding of the harm done and

their decisions could reduce the number of false

potential harm that could be done, it is important

pleas, reduce bail amounts, and promote a better,

to build them into the pretrial release decision

more just pretrial process.

making process. As issues differ depending on the

B A IL FA IL

5. Use citations and
summons to reduce the
number of people being
arrested and processed
through jails.

and many states can provide models for how to

Police officers should be enabled to remain on

assess defendants in those jurisdictions and to

the streets doing their job by using citations and

develop a practical, effective tool for everyday use.

summons instead of transporting every person

Once the proper tool is in place, a process for ap-

arrested to a booking facility. If more information

plying assessment findings into pretrial decisions

is necessary to determine if release is safe, police

must be implemented. Judicial officials and all par-

officers, working alone or in conjunction with

ties involved must be educated about the tool and

pretrial service agents, can use risk assessments

how it can assist in making meaningful decisions.

implement this practice into a jurisdiction. Some jurisdictions are currently using risk assessments that
have not been validated, which is an ineffective
practice. Not only can these reduce public safety,
they may also reinforce racial and ethnic biases in
the system. It is vitally important to conduct validation studies to ensure that these tools accurately

to safely gather the person's personal information
and conviction history.

6. Use standardized,
validated risk assessments to determine
who to release and
how to release.
Every jurisdiction should invest in a validated risk

7. Implement measures
of pretrial detention
and release services
to evaluate current
programming and
better inform pretrial
reform efforts.

assessment for their locality. Risk assessments help

Currently, no data is being collected in a standard-

when implementing citation programs, as well as,

ized way regarding pretrial detention across the

in developing optimal pretrial release determina-

nation for both misdemeanors and felonies. Little is

tions that benefit both the jurisdiction, the jails, and

being consistently measured across the many pretri-

the person charged with an offense. Before making

al service agencies regarding the outcomes of their

a risk assessment mainstream, it is important to

services. In order to better understand the impact of

ensure the risk assessment put in place is appropri-

pretrial detention and how the U.S. is performing

ate. Standardized, validated risk assessments are

compared to other nations, national data on pretrial

crucial to maintaining objectivity in the pretrial

detention should be gathered from jails and prisons

process. These tools produce data that provide for

that hold people who are going through the court

informed bail decisions and support judicial offi-

process. Additionally, within reasonable expecta-

cials in having a reliable, bias-free opinion driving

tions, pretrial service agencies should utilize the

his or her determination. Validated risk assess-

measures already created to provide the public with

ments are gaining popularity as judges look for

a clear picture of their work and effectiveness in

more objective ways to conduct the pretrial process

preventing failure to appear and re-arrests.

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JUSTICE POLICY I NSTI TUTE

8. FOR-PROFIT BAIL BONDING BUSINESSES SHOULD
BE REQUIRED REPORT ON
PRETRIAL MEASURES TO
BETTER TRACK FORFEITURE
RATES, FTA RATES, AND
OTHER PRETRIAL PERFORMANCE AND OUTCOMES
INDICATORS.
For-profit bail bonding companies are responsible
for the release of millions of defendants each year.
At this time, there is little regulation or oversight
over this crucial aspect of public safety. Due to the
extensive use of money bail, some people accused
of offenses are assigned money bail when a better form of pretrial release would have provided
greater public safety. Bail bondsmen then exercise
a tremendous amount of power over people in
detention by choosing, upon factors of their own
financial gain, for whom they will post a bond.117
Bondsmen also have the ability to put a person
they have posted a bond for back into jail at any
time, for any reason. For-profit bondsmen play a
crucial part in the justice system that affects the
safety to the public at large, as well as, people’s
rights to liberty. Only when for-profit bail bonding
companies are required to report on indicators of
pretrial performance and outcomes will policymakers be able to make educated decisions around the
use of bail and bail bonding as opposed to nonfinancial release options.

the effectiveness of the programs. Pretrial services
can assist both law enforcement and judicial officers to promote citations and appropriate bail
determinations by providing risk assessment and
fact-finding services. Pretrial service agencies
can provide more accurate and appropriate bail
recommendations to judicial officials to aid in the
bail determinations that will in compliance with
the law. Using the findings from their risk assessments, pretrial service agencies can provide the
pretrial supervision services most appropriate for
each accused person to ensure they complete the
pretrial process successfully. Given that pretrial
agencies may also provide other services that can
help people while awaiting trial (such as treatment, job placement, etc.), longer terms outcomes
of money bail versus pretrial services should be
examined. Cost studies confirm that it is much
more affordable to assess and monitor people in
the community through pretrial services rather
than keep them in a jail. In order to reduce communities’ reliance on jails, pretrial services should
be expanded to allow for the safe and informed
release of people awaiting trial. Several jurisdictions have fully functioning pretrial service agencies that have a proven record of success; and the
Pretrial Justice Institute has provided a Pretrial
Services Program Implementation Starter Kit to
assist jurisdictions in planning and implementing
pretrial services in their area.118

10. USE COURT
NOTIFICATIONS.
Through personally manned or computerized programs, reminding people about upcoming hearings

9. UTILIZE PRETRIAL
SUPERVISION AGENCIES.
Evidence-based practices, such as screenings with a
validated risk assessment, are important to ensure

has proven to reduce failure-to-appear rates. Notification systems should be a part of every court budget to ensure dollars are not spent trying to track or
punish people unnecessarily.

B A IL FA IL

11. Research the
13. Better utilize
effectiveness of current technology to improve
and proposed pretrial
pretrial processes.
practices to ensure the Pretrial reform is a daunting task for cities and
counties operating on a stringent budget. Although
activities will lead to
the cost savings of pretrial reform is becoming
desired outcomes.
clearer, determining how to shift funds to begin or
The paucity of research around the use of money
bail and its impact on community safety and pretrial compliance is startling. Analyses researching the use of money bail and resulting outcomes
within various groups of the population should be
conducted. A few areas where a lack of research
currently exists include the following, among many
others:
•	

•	

can be challenging. Software is now available allowing modeling of communities and interventions so that jurisdictions can test changes to their
systems and estimate outcomes before actually
instituting changes. Electronic software can also be
used to allow risk assessments, as well as, fingerprinting and positive identification to be conducted
anywhere quickly. As noted previously, electronic

How do money bail outcomes differ between

court notification systems can automatically re-

people of different socioeconomic groups

mind people of upcoming hearings to effectively

Parameters within which the practice of preventive detention is effective or not effective

•	

expand services while maintaining current systems

The loss of income on the national level due to
pretrial detention

12. Amend the Bail
Reform Act and policies
to comply with the
Equal Protection Clause.
Current practices allow for people to be treated
differently within the criminal justice system on
account of their financial status. This is believed to
be a violation of the Equal Protection Clause and
should be remedied. Elimination of money bail is
an important step toward eliminating disparities in
pretrial outcomes due to financial status.

reduce failure-to-appear rates.

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justice policy institute

ENDNOTES
1	
Timothy R. Schnacke, Michael R. Jones, and Claire M.
Brooker, “The History of Bail and Pretrial Release,” Pretrial
Justice Institute, September 2010.
2	
Eric Holder, “Attorney General Eric Holder Speaks at
the National Symposium on Pretrial Justice,” June 1, 2011,
U.S. Department of Justice, http://www.justice.gov/iso/
opa/ag/speeches/2011/ag-speech-110601.html.
3	
Shima Baradaran and Frank McIntyre, “Predicting
Violence,” Texas Law Review, 90(2012):497-570.
4	
Todd D. Minton, “Jail Inmates at Midyear 2011—Statistical Tables,” Bureau of Justice Statistics, NCJ 237961, 2012,
http://www.bjs.gov/content/pub/pdf/jim11st.pdf.
5	

Todd Minton, 2012, 1.

17	 Douglas J Klein, “The Pretrial Detention ‘Crisis’: The
Causes and the Cure,” Journal of Urban and Contemporary Law,
52(1997): 14.
18	

Douglas J Klein, 1997, 293.

19	 Alon Harsih and Alexis Shaw, “Man Forced to Work in
Prison Sues Under Anti-Slavery Amendment,” ABC News,
August 10, 2012, accessed August 2012, http://abcnews.
go.com/US/man-alleging-prison-labor-violated-anti-slavery-amendment/story?id=16970464#.UEoHtCK9GmI.
20	

Douglas J. Klein, 1997, 294.

21	 Robert F. Kennedy, “Testimony by Attorney General
Robert F. Kennedy on Bail Legislation Before the Subcommittees on Constitutional Rights and Improvement in Judicial
Machinery of the Senate Judiciary Committee,” Department
of Justice, August 4, 1964, http://www.justice.gov/ag/rfkspeeches/1964/08-04-1964.pdf, 3.

6	
Thomas H. Coen and Brian A. Reaves, “Felony Defendants in Large Urban Counties, 2002,” U.S. Department of
Justice, February 2006.

22	 David Berry, “The Socioeconomic Impact of Pretrial
Detention: A Global Campaign for Pretrial Justice Report,”
Open Society Foundation, 2011, 28.

7	
Douglas Colbert, “Prosecution Without Representation,” Buffalo Law Review, 59(2):333-453, 2011, 334.

23	

David Berry, 2011, 28.

24	

The Abell Foundation, 2001, 25.

8	
Pretrial Justice Institute, Working Document, September 2011.
9	
State Court Processing Statistics data as retrieved from
the Felony Defendants in Large Urban Counties reports,
1992—2006.
10	 State Court Processing Statistics data as retrieved from
the Felony Defendants in Large Urban Counties reports,
1992-2006.
11	 Michelle Alexander, “Go to Trial: Crash the Justice
System.” Opinion article, The New York Times, 2012. Accessed
at http://www.nytimes.com/2012/03/11/opinion/sunday/
go-to-trial-crash-the-justice-system.html.
12	

Jonathan Zweig, “Extraordinary Conditions of Release
Under the Bail Reform Act,” Harvard Journal on Legislation, 47
(2010):556.
13	 Mary T. Phillips, “Pretrial Detention and Case Outcomes, Part 2: Felony Cases,” New York City Criminal Justice
Agency, Inc., March 2008.
14	 Marian R. Williams, “The Effects of Pretrial Detention on Imprisonment Decisions,” Criminal Justice Review,
28(2):299-316.
15	 The Abell Foundation, “The Pretrial Release Project: A
Study of Maryland’s Pretrial Release and Bail System,” September 12, 2001, 11.
16	

ABA Standards for Criminal Justice: Pretrial Release,
3rd Edition, 2007

25	 Amanda Gullings, “The Commercial Bail Industry:
Profit or Public Safety?”, Center on Juvenile and Criminal
Justice, May 2012.
26	

David Berry, 2011, 29.

27	

Zweig, 2010, 556.

28	

Zweig, 2010, 563.

29	 Cornell University Law School, “Equal Protection: An
Overview,”August 19, 2010, http://www.law.cornell.edu/
wex/equal_protection, accessed August 11, 2012.
30	

Todd Minton, 2012, 3.

31	 Estimates based on population statistics from Table 1 in
Karen R. Humes, Nicholas A. Jones, and Roberto R. Ramirez,
“Overview of Race and Hispanic Origin: 2010,” 2010 Census
Briefs, March 2011, http://www.census.gov/prod/cen2010/
briefs/c2010br-02.pdf and jail population statistics from
Table 6 in Todd Minton, 2012, 6. Estimates are lower than
actual rates as they are based on total population statistics
and not limited to adult population statistics.
32	

“Judicial Proceedings Before Trial,” http://law.justia.
com/constitution/us/amendment-06/17-right-to-counselin-nontrial-situations.html.
33	 John Wooldredge, “Distinguishing Race Effects on PreTrial Release and Sentencing Decisions,” Justice Quarterly, 29
(2012):41-75, 54.
34	

John Wooldredge, 2012, 54.

B A IL FA IL

35	

John Wooldredge, 2012, 54.

36	

John Wooldredge, 2012, 63.

37	

John Wooldredge, 2012, 67.

38	 Shawn D. Bushway and Jonah B. Gelbach, “Testing for
Racial Discrimination in Bail Setting Using Nonparametric
Estimation of a Parametric Model,” (February 14,2012), Yale
University Department of Economics Labor/Public Economics Workshop.
39	

Shima Baradaran and Frank McIntyre, 2011, 24.

40	

Shima Baradaran and Frank McIntyre, 2011, 24.

41	 Vera Institute of Justice, “Los Angeles County Jail Overcrowding Reduction Project, Final Report: Revised,” September 2011.
42	 Nastassia Walsh, “Baltimore Behind Bars: How to Reduce the Jail Population, Save Money and Improve Public
Safety,” (2010), http://www.justicepolicy.org/images/upload/10-06_REP_BaltBehindBars_MD-PS-AC-RD.pdf.

54	 Personal communication with Dr. Will Marling, Executive Director of the National Organization for Victim Assistance, 8/15/2012.
55	 Barry Mahoney, and others, “Pretrial Services Programs: Responsibilities and Potential,” National Institute of
Justice: Issue and Practices, March 2001, https://www.ncjrs.
gov/pdffiles1/nij/181939.pdf, 31.
56	 Thomas H. Cohen and Tracey Kyckelhahn, “Felony
Defendants in Large Urban Counties, 2006,” Bureau of Justice
Statistics Bulletin: State Court Processing Statistics 2006, May
2010.
57	 Lindsey Carlson, “Bail Schedules: A Violation of Judicial Discretion?” Criminal Justice 26 (2011).
58	 Allen Hopper, Margaret Dooley-Sammuli, and Kelli
Evans, 2012, 29.
59	

Maryland Rule 4-216(d)(1).

43	 Jail Daily Extract, February 13, 2012, provided by Division of Pretrial Detention and Services.

60	 Pretrial Justice Institute, “Pretrial Justice in America:
A Survey of County Pretrial Release Policies, Practices, and
Outcomes,” 2010, http://www.pretrial.org/Docs/Documents/Pretrial%20Justice%20in%20America.pdf.

44	

Nastassia Walsh, 2010.

61	

45	

Nastassia Walsh, 2010, 13.

62	 Naomi J. Freeman, “The Adam Walsh Act: A False
Sense of Security or an Effective Public Policy Initiative?”
Policy Review, 21(2010): 31-49.

46	 Virginia Community Criminal Justice Association,
“October Study: An Investigation of Defendants Detained in
Virginia Jails and their Subsequent Release on Bond in October 2011,” February 15, 2012.
47	

Vera Institute of Justice, 2011.

48	

Vera Institute of Justice, 2011, 11.

49	

Vera Institute of Justice, 2011, 11.

50	 State of California, “Jail Profile Survey: 2012, 1st
Quarter Survey Results,” Facilities Standards and Operations Division, Corrections Standards Authority, http://
www.bscc.ca.gov/programs-and-services/cpp/resources/
jail-profile-survey.
51	 Allen Hopper, Margaret Dooley-Sammuli, and Kelli
Evans, Public Safety Realignment: California at a Crossroads
(California: ACLU, March 2012), http://www.aclunc.org/
realignment.
52	 Alex Piquero, “Cost-Benefit Analysis for Jail Alternatives and Jail,” 2010, http://www.criminologycenter.fsu.
edu/p/pdf/pretrial/Broward%20Co.%20Cost%20Benefit%20Analysis%202010.pdf.
53	 Marie VanNostrand, “Alternatives to Pretrial Detention: Southern District of Iowa, A Case Study,” Federal
Probation, 74(2010), http://www.uscourts.gov/uscourts/
FederalCourts/PPS/Fedprob/2010-12/alternatives.html.

Stack v. Boyle, 342 U.S. 1.

63	 Christopher Slobogin, “Preventive Detention in Europe
and the United States,” Public Law & Legal Theory Working
Paper Number 12-27, Law & Economics Working Paper Number
12-20; Bernard E. Harcourt, “Punitive Preventive Justice: A
Critique,” Institute for Law and Economics Working Paper No.
599 (2D Series), Public Law and Legal theory Working Paper No.
386, May 2012.
64	

Phyllis E. Mann, "Ethical Obligations of Indigent Defense Attorneys to Their Clients," Missouri Law Review, 75
(2010): 715-749, 732.
65	

Phyllis Mann, 2010.

66	

Douglas Colbert, 2011.

67	 Kate Taylor, "System Overload: The Cost of Underresourcing Public Defense," The Justice Policy Institute, 2011
accessed at http://www.justicepolicy.org/uploads/justicepolicy/documents/system_overload_final.pdf .
68	

DeWolfe v. Richmond, No. 34, September Term 2011.

69	

Douglas Colbert, Ray Paternoster, and Shawn Bushway, “Do Attorneys Really Matter? The Empirical and Legal
Case for the Right of Counsel at Bail,” Cardozo Law Review,
23(2002): 1719-1792.
70	 Paul DeWolfe, "The Burden of Bail: Addressing Challenges to Indigent Defense at Bail Hearings," Open Society

47

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justice policy institute

Institute—Baltimore, Bail Forum #2, May 16, 2012.

Performance%20%20Framework%20FINAL.pdf.

71	 Daniel Menefee, “$28M Needed to Comply with Court
Ruling, Public Defenders Says; Prosecutors Say It Will Cost
Them $83M,” MarylandReporter.com, (January 27, 2012),
http://marylandreporter.com/2012/01/27/28m-needed-tocomply-with-court-ruling-public-defender-says-prosecutorssay-it-will-cost-them-83m/.

84	 Public Opinions Strategies and The Mellman Group,
“Public Opinion on Sentencing and Corrections Policy in
America,” Pew Center on the States, March 2012.

72	 Andrew D. Leipold, "How the Pretrial Process Contributes to Wrongful Convictions," The American Criminal Law
Review, 42(2005):1123-1165, 1128.
73	 Oklahoma Indigent Defense Act, 22 O.S.2011, 1355 (Section D).
74	

Barry Mahoney and others, 2001, 16.

85	 Marketwise, “Charlotte-Mecklenburg 2012 Criminal
Justice System Survey Presentation of Results,” Charlotte,
NC, April 1, 2012.
86	 Email from Cherise Burdeen, Pretrial Justice Institute,
July 19th, 2012.
87	 Marie VanNostrand and Kenneth J. Rose, “Pretrial
Risk Assessment in Virginia: The Virginia Pretrial Risk Assessment Instrument,” VA Dept of Criminal Justice Services,
2009.

75	 Michelle Alexander. “Go to Trial: Crash the Justice
System,” The New York Times, 2012, accessed at http://www.
nytimes.com/2012/03/11/opinion/sunday/go-to-trialcrash-the-justice-system.html.

88	 This information was gathered at a preliminary findings presentation of ongoing research sponsored by the
Public Welfare Foundation and conducted by Lake Research
Partners in 2012.

76	 Nick Pinto, “Bail is Busted: How Jail Really Works,
The Village Voice, April 25, 2012, www.villagevoice.
com/2012-04-25/news/bail-is-busted-new-york-jail/all/.

89	

Barry Mahoney and others, 2001.

90	

VanNostrand and Rose, 2009, 14.

91	

Marketwise, 2012, 17.

77	 State Court Processing Statistics data as retrieved from
the Felony Defendants in Large Urban Counties reports,
1992—2006.
78	 Q&A session of The Burden of Bail: Addressing Challenges to Indigent Defense at Bail Hearing, May 16, 2012.
79	

Lucian E. Dervan and Vanessa Edkins, “The Innocent
Defendant’s Dilemma: An Innovative Empirical Study of
Plea Bargaining’s Innocence Problem,” Journal of Criminal
Law & Criminology, 103(forthcoming 2013).
80	 This estimate made by calculating 50 percent of the 65
percent of defendants who plead guilty in 2006; Thomas H.
Cohen and Tracey Kyckelhahn, ”Felony Defendants in Large
Urban Counties, 2006,” (Washington, D.C.: U.S. Bureau of
Justice Statistics, May, 2010).
81	 Chantale Lacasse and A. Abigail Payne, “Federal Sentencing Guidelines and Mandatory Minimum Sentences: Do
Defendants Bargain in the Shadow of the Judge?”, Journal
of Law and Economics 42 (1999): 245; Erik Luna, “Mandatory Minimum Sentencing Provisions Under Federal Law,”
(testimony delivered to the United States Sentencing Commission, May 27, 2010), http://www.cato.org/publications/
congressional-testimony/mandatory-minimum-sentencingprovisions-under-federal-law.
82	

Douglas J. Klein, 1997.

83	 Steven Jansen and Robert Hood, “A Framework for
High Performance Prosecutorial Services,” Prosecutor’s Report
III, Washington, DC: Association of Prosecuting Attorneys,
2011, http://www.apainc.org/files/DDF/APA%20High%20

92	 James Austin and others, “Kentucky Pretrial Risk Assessment Instrument Validation,” Denver, CO: The JFA Institute, October 29, 2010.
93	

Wooldredge, 2012.

94	 Personal communication with David M. Bennett, August 29, 2012.
95	

VanNostrand and Rose, 2009, 23.

96	

James Austin and others, 2010.

97	 Amy L. Solomon and others, “Putting Public Safety
First: 13 Strategies for Successful Supervision and Reentry,”
Public Safety Policy Brief, No. 7, December 2008.
98	 Focus group findings from ongoing research conducted
by the Justice Policy Institute, supported by the Public Welfare Foundation.
99	 Laurie Robinson, “National Symposium on Pretrial Justice Panel: The Next 50 Years,” Remarks of the Assistant Attorney General, June 1, 2011, Washington, D.C., http://www.
ojp.usdoj.gov/newsroom/speeches/2011/11_0601lrobinson.
htm.
100	 Legislative Research Commission, “Report of the 2011
Task Force on the Penal Code and Controlled Substances
Act (2011 House Bill 463),” Research Memorandum No. 508,
December 2011, http://www.lrc.ky.gov/lrcpubs/rm508.pdf.
101	 Bureau of Justice Assistance. “Forthcoming. Pretrial
Diversion in the 21st Century: A National Survey of Pretrial
Diversion Programs and Practices.” Washington, D.C.: U.S.

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Department of Justice, Bureau of Justice Assistance.

116	 Shawn D. Bushway and Jonah B. Gelbach, 2011, 9.

102	 Connie Clem, “69 Ways To Save Millions,” American
Jails (November/December 2009): 15, www.pretrial.org/
Docs/Documents/69%20Ways%20to%20Save%20MoneyNov-Dec%202009.pdf.

117	 Robert F. Kennedy, 1964, 2.

103	 Jefferson County, Colorado Court Date Notification Program, FTA Pilot Project Summary, 11-9-2005, www.
co.jefferson.co.us/jeffco/cjp_uploads/FTA_Pilot_Project_
Summary.pdf; correspondence with Paula Hancock, Program
Specialist, Jefferson County Sheriff’s Office, April 2011.
104	 Correspondence with Jim Vaughn, Court Technology
Administrator, Miami County, Ohio Municipal Court, August 2011.
105	 Aimee Green, “Wake-Up Call: You Are Due in Court,”
The Oregonian, October 17, 2007, www.co.multnomah.or.us/
dcj/oregonlivewakeupcall101707.pdf; phone correspondence
with Jennifer Sanders, n.d.
106	 Arapahoe County, “Court Date Notification,” Retrieved
November 2010, www.co.arapahoe.co.us/Departments/CS/JudicialServices/Court%20Date%20Notification%20Program.asp.
107	 Mitchel N. Herian and Brian H. Bornstein, “Reducing
Failure to Appear in Nebraska: A Field Study,” The Nebraska
Lawyer (Sept. 2010), http://digitalcommons.unl.edu/cgi/
viewcontent.cgi?article=1008&context=publicpolicyfacpub.
108	 Andrew D. Leipold, “How the pretrial process contributes to wrongful convictions,” The American Criminal Law
Review, 42(2005), 1128.
109	 Todd Fogleson and Christopher E. Stone, “Prison Exit
Samples as a Source for Indicators of Pretrial Detention,”
Indicators in Development Safety and Justice, Harvard Kennedy
School, April 2011.
110	 Todd Fogleson and Christopher E. Stone, 2011, 6.
111	 Todd Fogleson and Christopher E. Stone, 2011, 6.
112	 James Austin and others, “Evaluation of the Current
and Future Los Angeles County Jail Population,” Denver,
CO: The JFA Institute, April 10, 2012.
113	 The National Institute of Corrections Pretrial Executive Network, “Outcome and Performance Measures for
the Pretrial Services Field,” The U.S Department of Justice,
Washington, D.C., August 2011.
114	 Timothy R. Schnacke, Michael R. Jones, and Claire M.
Brooker, 2010, 13.
115	 Pretrial Justice Institute, “The D.C. Pretrial Services
Agency: Lessons from Five Decades of Innovation and
Growth,” Case Studies, 2(1), Accessed 8/25/2012, http://
www.pretrial.org/AnalysisAndResearch/CaseStudies/
Pages/default.aspx.

118	 Pretrial Justice Institute, “Pretrial Services Program
Implementation: A Starter Kit,” http://www.pretrial.org/
Reports/PJI%20Reports/PJI%20Pretrial%20Services%20Program%20Implementation%20A%20Starter%20Kit.pdf.

49

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ABOUT THE AUTHOR
Melissa NeaL, Senior Research Associate
Dr. Melissa Neal has worked to address criminal justice issues in a number of ways, ranging from being a
mentor to co-founding a not-for-profit agency providing services to families impacted by incarceration and
women in prison who were preparing to re-enter the community. She also has worked as an evaluations
researcher developing performance-monitoring frameworks for federal programs addressing child welfare,
child abuse and neglect cases. She received a Doctorate of Public Health degree from East Tennessee State
University where she studied the impact of parental incarceration on children’s educational performance.
She received her undergraduate degree in Biology from Elon University in North Carolina.

Acknowledgements
The Justice Policy Institute’s 2012 bail-related work, including this report, was made possible by the generous support of The Public Welfare Foundation. The Justice Policy Institute (JPI) thanks the following
people for generously lending their time and expertise: Tim Murray, John Clarke, Cherise Burdeen, Will
Marling, Travis Alston, Tyriel Simms, Darian Watson, Page Croyder, and Spurgeon Kennedy. Many thanks
to Deborrah Brodsky and David M. Bennett for reviewing the report and providing helpful feedback.
Special thanks to Jean Chung who provided the Special Features included in this report during her time as
an Emerson Hunger Fellow at JPI. All of her work documenting the issues of bail in Baltimore, Maryland,
will be presented in a forthcoming report.
JPI staff includes Paul Ashton, Spike Bradford, Jacqueline Conn, Zerline Hughes, Adwoa Masozi, Melissa
Neal, Kellie Shaw, Tracy Velazquez, and Keith Wallington.

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