Since 2000, the annual number of people convicted of crimes in the United States
has stayed steady, but the average number of people in jail each year has shot up.
How can that be?
The answer lies in the bail system—
which isn’t doing what it was intended to do.
The term "bail" refers to the release of people awaiting trial
on condition that they return to court to face charges.
Countries around the world use many variations of bail,
and some don’t use it at all.
The U.S. bail system relies primarily on what’s called cash bail,
which was supposed to work like this:
When a person was accused of a crime,
the judge would set a reasonable price for bail.
The accused would pay this fee in order to be released from jail
until the court reached a verdict on the case.
Once the case ended, whether found guilty or innocent,
they’d get the bail money back if they made all their court appearances.
The rationale behind this system is that under U.S. law,
people are presumed innocent until proven guilty—
so someone accused of a crime should not be imprisoned
unless they’ve been convicted of a crime.
But today, the bail system in the U.S.
doesn’t honor the presumption of innocence.
Instead, it subverts peoples’ rights and causes serious harm,
particularly to people in low-income communities
and communities of color.
A key reason why is the cost of bail.
In order for cash bail to work as intended,
the price has to be affordable for the accused.
The cost of bail wasn’t meant to reflect the likelihood of someone’s guilt—
when bail is set, the court has not reviewed evidence.
Under exceptional circumstances, such as charges of very serious crimes,
judges could deny bail and jail the accused before their trial.
Judges were supposed to exercise this power very rarely,
and could come under scrutiny for using it too often.
Setting unaffordably high bail became a second path
to denying people pretrial release.
Judges' personal discretion and prejudices played a huge role
in who they chose to detain this way.
Bail amounts climbed higher and higher, and more and more defendants couldn’t pay—
so they stayed in jail.
By the late 19th century,
these circumstances led to the rise of commercial bail bond companies.
They pay a defendant’s bail, in exchange for a hefty fee the company keeps.
Today, the median bail is $10,000—
a prohibitively high price for almost half of Americans,
and as many as nine out of ten defendants.
If the defendant can’t pay,
they may apply for a loan from a commercial bail bond company.
It’s completely up to the company to decide whose bail they’ll pay.
They choose defendants they think will pay them back,
turning a profit of about $2 billion each year.
In fact, in the past 20 years,
pretrial detention has been the main driver of jail growth in America.
Every year, hundreds of thousands of people
who can’t afford bail or secure a loan stay in jail until their case is resolved.
This injustice disproportionately affects Americans who are Black and Latino,
for whom judges often set higher bail
than for white people accused of the same offenses.
Unaffordable bail puts even innocent defendants in an impossible position.
Some end up pleading guilty to crimes they did not commit.
For minor offenses, the prosecution may offer a deal that credits time
already spent in jail toward the accused’s sentence
if they plead guilty.
Often, the time they’ve already spent in jail is the total length of the sentence,
and they can go home immediately— but they leave with a criminal record.
Defending their innocence, meanwhile,
can mean staying in jail indefinitely awaiting trial—
and doesn’t guarantee an innocent verdict.
Bail may not even be necessary in the first place.
Washington, D.C. largely abolished cash bail in the 1990s.
In 2017, the city released 94% of defendants without holding bail money,
and 88% of them returned to all their court dates.
The nonprofit organization, The Bail Project,
provides free bail assistance to thousands of low-income people every year,
removing the financial incentive that bail is designed to create.
The result? People come back to 90% of their court dates
without having any money on the line,
and those who miss their court dates tended to
because of circumstances like child care, work conflicts, or medical crises.
Studies have also found that holding people in jail before trial,
often because they cannot afford cash bail,
actually increases the likelihood of rearrests and reoffending.
The damage of incarcerating people before their trials
extends to entire communities and can harm families for generations.
People who are incarcerated can lose their livelihoods, homes,
and access to essential services—
all before they’ve been convicted of a crime.
It’s also incredibly expensive:
American taxpayers spend nearly $14 billion every year
incarcerating people who are legally presumed innocent.
This undermines the promise of equal justice under the law,
regardless of race or wealth.
The issues surrounding cash bail are symptomatic of societal problems,
like structural racism and over-reliance on incarceration,
that need to be addressed.
In the meantime, reformers like The Bail Project
are working to help people trapped by cash bail
and to create a more just and humane pretrial system for the future.