Skip Navigation

The Price of Freedom: America’s Unjust Cash Bail System

Image via Minnesota Spokesman-Recorder

This piece was produced in part with the financial support of the Stone Inequality Initiative. The Brown Political Review maintains editorial independence over all columns and stories published.

Richard Griffin spent two days in Michigan’s Wayne County Jail as his family scrambled to find the funds to cover his $850 bail. Arrested for having a handgun in his car and an outstanding warrant due to an unpaid traffic ticket, Griffin quickly found himself embroiled in a troubling situation. While in jail, he missed his first day of work and was unable to warn his employer that he would be absent—causing him to lose his job. On top of this, he had arranged an appointment with a social service agency to seek emergency rental assistance, but his 48 hours of incarceration prevented him from attending it. Without the appointment, he was unable to secure aid and was subsequently evicted. Although Griffin endured a far shorter pretrial detention with a lower bail than most people accused of a crime, the cash bail system still acutely damaged his life. His situation is not unique. Hundreds of thousands of individuals across America are currently awaiting trial behind bars.

It is easy to imagine that justice is a given—an impartial, unyielding concept that a liberal, democratic society will always uphold. For millions like Griffin, however, “justice” is an unattained ideal. In the United States, those without money are incarcerated while they await trial, whereas those who can post bail await trial freely in the community; Lady Justice’s scales tip when the wealthy tip her. The structures forged to prevent crime have created an inherently unjust system in which freedom can be bought—if you can afford it. The cash bail system criminalizes poverty, corrupting the fundamental notion of being “innocent until proven guilty” and necessitating nationwide reform.

Between 1970 and 2015, the number of people incarcerated before being tried increased by 433 percent, largely due to judges relying more heavily on cash bail. When put into context, this figure is even more shocking: Two-thirds of those locked up in America’s local jails have not even been convicted of a crime. In 2015, courts typically set bail at $10,000 for felonies—a staggering number considering the fact that the median annual income for individuals in pretrial detention was $15,109. In 2022, 37 percent of Americans surveyed by the Federal Reserve said they could not afford to fully cover a $400 emergency expense immediately, meaning they would have to borrow money or sell possessions to do so. Some reported they would not be able to afford it at all. Because it is so often imposed on people who cannot pay, bail has become an insurmountable financial burden for countless Americans, threatening to irreparably disrupt their lives. 

While the profound impact of spending months or years in pretrial detention is evident, even a brief period of incarceration can wreak havoc on individuals and their families. Spending just one day in jail can diminish a person’s employment prospects and heighten the risk that they will lose their job. Research also indicates that spending greater than 23 hours in jail increases a person’s chances of rearrest. When faced with these troubling prospects, individuals unable to post bail find themselves caught in a dilemma with no favorable options: borrow money from the predatory bail bonds industry, languish behind bars, or plead guilty. Unfortunately, many choose the last option—defendants who are incarcerated pretrial are significantly more likely to enter into plea deals. Compared to those who are not detained pretrial, defendants in jail submit guilty pleas almost three times quicker. Poor defendants thus face an uphill battle within a system that is supposed to be impartial and just.

Despite the clear moral impetus, reforming the cash bail system is no politically easy task. Republicans and Democrats alike are wary of being perceived as “pro-crime” because of the public’s heightened fears about rising crime rates; a November Gallup poll revealed that a majority of American adults felt that the criminal justice system was not “tough enough.” In the 2022 midterm elections, many of the most hotly contested races involved politicians who debated crime policy, with candidates from each party slamming their opponents with “soft-on-crime” accusations. Republicans have targeted a slate of anti-cash-bail candidates, including Senator John Fetterman (D-PA), accusing them of being soft on crime due to their support for criminal justice reform. On the flip side, Democratic candidates like Oklahoma’s Joy Hofmeister have criticized Republicans for being ineffective at addressing crime, citing their record of supporting bipartisan clemency initiatives intended to benefit those sitting in prisons. 

What’s often overlooked in the political rhetoric against cash bail reform is the nature of the crimes being committed in the first place. Over 95 percent of crime in the United States is nonviolent, indicating that most people who are arrested can safely await trial in their communities rather than in holding cells. Moreover, cash bail reform is not a novel idea. It has been implemented to varying degrees in New York State, Washington, DC, and Illinois. In all of these cases, cash bail reform has led to a decrease in the likelihood of rearrest, proving that public safety concerns are unfounded. In Harris County, Texas, dropping cash bail for those charged with nonviolent offenses led to a 6 percent drop, not increase, in recidivism. Moreover, cash bail reform does not, in reality, decrease the rate at which defendants show up to their trials—nullifying the logical underpinning of cash bail programs. 
For politicians, resisting cash bail reform is merely a convenient way to appear tough on crime without actually presenting substantive solutions to underlying criminogenic issues. However, reform doesn’t have to be uniform. Governments threatened by opponents who stir up fear of societal disorder can start with milder reforms, including reducing cash bail for nonviolent cases or ensuring that defendants have access to counsel before their bail hearings, rather than debating more controversial policies like eliminating bail entirely. States can also opt to try out reforms in specific counties before enacting statewide reforms—Illinois, for instance, analyzed cash bail reforms in Cook County before eliminating cash bail statewide. Regardless of the approach, reform is necessary nationwide to ensure that we no longer allow bail to deprive people like Richard Griffin of their jobs, homes, and livelihoods. Your access to justice should never be determined by the thickness of your wallet.