Building on a movement that has reached both coasts and middle America, more jurisdictions are taking a serious look at the built-in bias of money bail and its disproportionate impact on people of color and people who are poor.
America’s jails are filled with people who have not been convicted of a crime: while awaiting trial, hundreds of thousands sit behind bars, sometimes for years, simply because they cannot afford to pay their bail—while those who have money can buy their liberty.Studies have shown that even spending a few days in jail can have tremendous consequences on a person’s life, including loss of employment or housing and pressure to plead guilty.
For years, the rallying cry of bail reform was to end money bail.Yet 2019 was the year it became clear that eliminating money alone, without other measures to decarcerate, will not deliver meaningful bail reform.
Take the examples of California and New Jersey, two states that were widely heralded in mainstream criminal justice circles for passing comprehensive bail reform in recent years. In 2018, California became the first jurisdiction to pass a law—Senate Bill 10—that ended money bail entirely.On its face, this should have been a victory in a state where bail amounts are some of the highest in the country, and thousands remain behind bars simply because they cannot afford bail.But the fundamental flaw of SB 10 was that it replaced the current practice of unfettered discretion to impose unaffordable bail amounts with something potentially worse—unfettered discretion to indefinitely detain people pretrial.Many bail reform advocates who initially supported SB 10 rescinded their support at the eleventh hour.More predictably, the for-profit bail bond industry in California also opposed bail reform, launching a campaign both to enshrine the “right to money bail” in the California Constitution and to repeal SB 10.SB 10 is now on hold pending a statewide referendum in November 2020 after the bail bond industry successfully gathered more than half a million signatures against the new law.
On the other side of the country, New Jersey, which enacted bail reform in 2017, released a study in April finding that although release rates increased and the overall pretrial jail population dropped by 30.8 percent after implementation, racial disparities remained as pronounced and disproportionate as before bail reform was passed.Troublingly, the majority of people released under New Jersey’s new bail scheme were subject to onerous pretrial conditions—only 9 percent of people arrested in New Jersey in the first three quarters of 2019 were released on their own recognizance, while 27 percent were subject to weekly phone and in-person supervision, and 6 percent to electronic monitoring or home confinement.
The challenge for other jurisdictions was to take the wins from California and New Jersey and learn from the mistakes. In April, New York became the most recent state to pass comprehensive bail reform.Compared to California or New Jersey, New York’s new bail law received relatively little media coverage. To many interested in bail and pretrial justice, New York’s efforts at reform seemed un-newsworthy as the bill didn’t go as far as originally promised to eliminate money bail entirely.(An earlier bill would have eliminated money bail entirely and allowed judges to impose preventive detention–remand with no bail—in some serious cases, but that version did not pass.)
Yet New York’s bail reform law has the potential to be groundbreaking and truly transformative. The law, which went into effect in January 2020, eliminates money bail and mandates release for most misdemeanors and nonviolent felonies—which together make up about 90 percent of all arrests statewide—although judges may order pretrial supervision or electronic monitoring in some cases. Money bail and pretrial detention are reserved for serious cases, including some domestic violence offenses and violent felonies. And if judges do set bail, they must consider a person’s ability to pay.
The New York law promises to have a significant effect on mass incarceration: some estimate that the state could see a 40 percent reduction in its pretrial jail population.And although the law does not fully eliminate money bail, it goes a step further than other reform bills by mandating, not just presuming, pretrial release for most arrests and requiring judges to consider ability to pay in the limited number of cases where bail is still imposed.
As with bail reform efforts in other states, there has been vocal opposition to New York’s plan—particularly from law enforcement and the District Attorneys Association of the State of New York.Opponents argue that those facing charges will have no incentive to appear before the court if bail is removed from the equation; they also warn of threats to public safety if incarcerated people are released en masse. As the law rolled out in January 2020 that opposition grew louder, with law enforcement and prosecutors demanding rollbacks and claiming that people who would otherwise have been incarcerated were out committing crimes—even though New York did not have a preventive detention provision prior to the new law and the primary determinant of whether a person was held pretrial was the ability, or inability, to pay bail.But criminal justice reform advocates say that the evidence does not support those fears—numerous studies, including New York City’s own data, have shown that people return to court at high rates even without any financial stake in their cases.And the real effects of the new bail reform law are already being felt in rural counties like Herkimer and Onondaga, where the number of people in jail has dropped dramatically, with no uptick in crime.
Change is happening at the local level as well. In March, the Pennsylvania ACLU filed a suit against six Philadelphia arraignment court magistrates arguing that the city’s bail system is broken and that money bail is often imposed on indigent people without considering their ability to pay.(In July, the Pennsylvania Supreme Court began a special inquiry into the money bail practices of the First District.) In Texas, a federal judge ruled that Galveston County must provide counsel at bail hearings.And Cook County (Chicago), Illinois, announced that major bail reforms enacted in the county led to a 15 percent drop in the jail population and an overall decline in violent crime.
One of the most significant bail reforms of 2019 has emerged out of Harris County (Houston), Texas—the state’s most populous county—after a lawsuit was filed in 2016 by people detained in the Harris County jail on misdemeanor charges because they could not afford bail.After the county’s misdemeanor bail system was ruled unconstitutional by a federal judge, the Harris County Criminal Courts at Law approved a landmark settlement proposal—Rule 9.1—that requires mandatory release of close to 85 percent of people arrested on misdemeanor charges in the county.For those still subject to money bail under the settlement, judges must first consider nonmonetary conditions of release and, if bail is set, a person’s ability to pay.Rule 9.1 further requires counsel at bail hearings, access to social workers, and supportive services such as court reminders and assistance getting to court.The settlement also provides for an “open-hours court” to be held once a week, where those who miss their hearings can return to court and clear up any warrants.The settlement has the potential to serve as a model—both in Texas and across the country—for moving away from money bail and embracing other decarcerative reforms—such as provisions for mandatory release and supportive, not punitive, pretrial services—that bail reformers have sought in addition to ending money bail.
These reforms in Harris County have engendered strong opposition by many, including those who originally were supportive of changes to the current bail system. During the litigation that led to Rule 9.1, Harris County District Attorney Kim Ogg publicly voiced her support for misdemeanor bail reform and called it “necessary and long overdue.”Yet the district attorney, with many members of local law enforcement agencies, protested the final version of the new misdemeanor bail rule at a hearing held by the federal judge in the case in October.At the hearing, more than 100 stakeholders—11 of whom gave testimony—filled the courtroom and, although Ogg declined the opportunity to speak, her office filed a brief raising concerns about the settlement and told reporters she was concerned about public safety because “[i]n practice, we’re seeing repeat offenders being released on PR (personal recognizance) bonds repeatedly.”After hearing the opposition, the federal judge still ruled to recognize Rule 9.1 in November, clearing the final hurdle for this historic settlement to take effect.
Research and statistics show that the reactionary arguments against bail reform used in Harris County—just like those in New York—have not proven to be accurate. In 2019, New Jersey released a report showing that people released as a result of the state’s bail reform are no more likely to commit new offenses or fail to show up for court appearances than people released under the prior system of money bail.An independent study found that Philadelphia’s efforts at bail reform led to a 23 percent increase in the number of people released with no compromises to court appearance, pretrial arrest, or crime.Finally, New York City consistently has had the lowest jail incarceration rate of any major U.S. city—as a result of local changes in bail practices enacted even before the new bail reform law passed this year—and continues to enjoy historically low rates of crime.