Constitution / Other

We’re Paying the Cost for Ineffective Pre-Trial Release Policies

Prior to the 2019 Timbs v Indiana Supreme Court decision, state and county courts were legally allowed to forfeit high priced property of the accused and hold them accountable to unnecessarily high fines before their trials.[1] In February of 2019, the United States Supreme Court ruled that the Constitution’s 8thAmendment ban on excessive fines applies to state and local governments as an incorporated right under the 14thAmendment. This decision spurred national discussion about the current systems in place for monetary bail and bonds as excessive fines for pretrial release.

When a person is arrested in the U.S, they are either written a citation or charged with a crime and booked into jail. At that point, the defendant goes before a judge for an initial bail hearing where the judge decides whether to allow the defendant to be released on good faith that the defendant returns for their actual hearing (recognizance) or places conditions on the defendant’s release. Cash bonds or bail are the most common conditions used by judges to ensure that a defendant does not flee. This condition for pretrial release has come under scrutiny in recent years. Those opposing the use of secured cash bonds say that they disproportionately affect lower socioeconomic classes because those individuals remain in jail if they cannot pay for their freedom. Those who support their use fear that without a monetary investment, the accused are unlikely to come to court for their hearings or they may reoffend before their next hearing, which poses a public safety threat. However, few conversations address the realities of what happens when secured bonds are not imposed and the economic effects of holding individuals in jail during their pretrial season.

In 2016, 65 percent of the jail population consisted of unconvicted individuals, meaning they were awaiting their trials. In 1990, unconvicted individuals only constituted about half of the jail population.[2]  Despite the difference, crime has not increased; however, the use of monetary bail has increased since 1990.[3] Public policy, which creates the standards by which judges determine pretrial release conditions, has favored the use of sentencing charts and diagrams since the 1990s. These materials, meant to help judges make prudent decisions about pretrial release, oftentimes lead to arbitrary decisions. Defendants end up being held for weeks or months because they cannot pay the fines for their freedom. The system proves ineffective for its purpose.

The rationale behind monetary bail was to give as much liberty to an individual as possible while ensuring their good behavior and appearance at trial.[4] Proponents of bail fear that without a monetary investment, defendants will not be held accountable. Yet, cities like Washington, D.C., which have almost eliminated monetary pretrial release conditions, saw 90% of released defendants show for their court date and 91% were not rearrested while awaiting trial.[5] D.C., along with Illinois, Philadelphia, parts of California, and counties in North Carolina, have reformed their pretrial release systems, shifting from sentencing charts to evaluative risk assessments to determine release conditions. This new method allows for risk factors, such as likelihood to flee or reoffend, to be evaluated on a defendant by defendant basis. The defendant receives a score based on their evaluation. The higher the score, the more likely he or she will flee, re-offend, or jeopardize public safety. Mecklenburg County in NC adopted this method in 2014 and by 2017 the jail population decreased by 11 percent, but crime did not increase.[6] This new method allows judges to more accurately assign pretrial release conditions, lessening the reliance on monetary bail.

Monetary bail as a pretrial release condition not only proves ineffective, it introduces serious costs. In 2013, about 12 million people were booked into local jails, 60 percent awaiting trial. The government spent about $9 billion to hold those inmates.[7] Monetary pretrial release conditions significantly contribute to inmates remaining in jail while they await trial. In 2016, Philadelphia set out to reduce their jail populations by 34 percent in 3 years.[8] Lawmakers recognized the impact of bail on the incarcerated population and implemented a risk assessment tool for pretrial release that severely reduced the use of monetary conditions. By May 2017, the jail population dropped 18 percent.[9] Holding persons in jail costs the local and state governments money and has economic impacts. Pew Charitable Trusts found that incarceration decreases a person’s wages by 11 percent and decreases annual earnings by 40 percent. Additionally, it reduces annual employment by nine weeks.[10]

Past research shows that individuals, without the use of cash bonds and monetary pretrial release conditions, are likely to show in court and are unlikely to reoffend while awaiting trial. The numbers also show that holding individuals in jail costs significant amounts of money. If holding individuals on monetary bail does not improve public safety or ensure that individuals will return for their court date, why continue to pay the monetary and social costs?

[1]Timbs v. Indiana

[2]Zeng, Zhen. 2018. “Jail Inmates in 2016.” Bureau of Justice Statistics, U.S. Department of Justice

[3]Felony Defendants in Large Urban Counties (BJS 1990–2009)

[4]Moving Beyond Money: A Primer on Bail Reform the Criminal Justice Policy Program (CJPP), Harvard Law School. 2016.

[5]Moving Beyond Money: A Primer on Bail Reform the Criminal Justice Policy Program (CJPP), Harvard Law School. 2016.


[7]Laura and John Arnold Foundation, Research Summary: Developing A National Model For Pretrial Risk Assessment, 2013

[8]Amer. Civil Liberties Union, ACLU-NJ Hails Passage of NJ Bail Reform as Historic Day for Civil Rights. Aug. 4, 2014. aclu-nj-hails-passage-nj-bail-reform-historic-day-civil-rights.


[10]Pew Charitable Trusts. “Collateral Costs: Incarceration’s Effect on Economic Mobility.” Pew Charitable Trusts, Philadelphia, PA. 2010.