A tool that is supposed to ensure that people make their court dates has become another avenue for class and race inequities.
The Ins and Outs of Bail
Cash bail is a refundable, court-determined fee that a defendant pays—regardless of guilt or innocence—to await trial at home instead of in jail. While “innocent until proven guilty” is ingrained in the American psyche, the use of bail means that if you can’t pay you serve jail time.
Here’s how bail usually works: You’ve been arrested, taken to jail, fingerprinted and processed. Within 24 to 48 hours, you’ll go to an initial hearing known as an arraignment. There, a judge will formally present the charges against you, and you will plead innocent or guilty. Then the judge either grants bail and sets the amount; releases you on your own recognizance without a fee; or denies you bail. Bail is usually denied if a defendant is deemed a flight risk or a danger to the community because of the nature of the alleged crime.
If you get bail, you have three choices:
Pay the amount in full and get out of jail. You’ll get the money back when the trial is over, no matter the outcome.
Pay nothing. You’ll return to jail and await trial.
Secure a bail bond and get out of jail. In this case, you’ll pay a private agent known as a bondsman a portion of the amount, usually 10 percent and collateral such as a home or jewelry to cover the balance. (In turn, bail bond companies guarantee the full amount to the court.) The fee you pay for a bail bond is not refundable, even if your charges are dropped.
The case of Kalief Browder exemplifies what can go wrong with cash bail. In 2010 the Black teenager was arrested in the Bronx for allegedly stealing a backpack. He maintained his innocence, but his family could not afford bail. Represented by a public defender with an overwhelming caseload, Browder waited in the notoriously violent Rikers Island Jail. Browder spent three years in Rikers, much of it in solitary confinement to protect him from abusive prisoners.
Browder’s case was eventually dismissed, but he suffered depression and PTSD. In 2015, after earning a GED and attending several semesters of college, Browder killed himself. New York City paid his family $3 million in 2019 to settle a wrongful death and civil rights violation lawsuit. His original bail was $3,000.
The risks of cash bail aren’t limited to individuals like Browder and Sandra Bland, a Black woman jailed after a violent traffic stop who killed herself after she couldn’t afford a $500 bond. A growing body of research indicates that being jailed before trial leads to worse outcomes. When defendants can’t make bail, they are more likely to plead guilty, and the plea bargains they’re offered are more severe. Those who can’t pay bail are also less likely to be found innocent at trial and receive longer sentences.
Over the past decade, jurisdictions looking to safely reduce their use of bail and pretrial detention have turned to risk assessment tools to help them predict how likely a defendant is to commit another crime or show up for court hearings. Developed and implemented by a mix of jurisdictions, states, private companies, nonprofit organizations and academic institutions, these special algorithms use factors such as age, education level, arrest record and home address to assign scores to defendants.
Risk assessment tools are marketed as a way to automate a resource-strapped system and remove human bias. But critics say that they can amplify existing inequities, especially against young Black and Latino men and people experiencing mental illness. More than 60 percent of Americans live in a jurisdiction where the risk assessment tools are in use, according to Mapping Pretrial Injustice, a nonprofit data campaign critical of the tools.