In my careful investigation into the use of money bail, one of the most striking things I encountered was the blatant lack of research supporting this practice. The use of money bail is so accepted in our society that it has taken a place in our general nomenclature. It’s part of jokes we make about going out and having a good time – “bring your bail money." It’s part of our fundraising campaigns – “Bail our Executive Director/Principal/Fire Chief out of jail with a contribution!”
While the majority of U.S. jurisdictions depend on money bail as a primary way of releasing people from jail while they await trial, the evidence supporting its use is severely lacking. It appears intuitive that posting money would compel compliance in attending court hearings and not being re-arrested, however, little research has been done to confirm this and it is usually supported anecdotally.
Now, with the use of bail schedules, monetary amounts for specific offenses are standardized in many places. Yet, once again, there is no evidence that one sum of money for an offense will better produce pretrial compliance over another sum. There is no empirical evidence showing which amounts of money bail are appropriate for certain types of offenses. Rather, we see bail schedules bolstering the rise in money bail amounts and often having very little relationship to the actual cost of loss or damage caused by the offense. For certain offenses such as rape or murder, could we ever begin to suggest a monetary amount to be appropriate for those types of violations?
Finally, while money bail is commonly referred to as an “incentive” to comply with requirements to attend trial and avoid re-arrest, it actually serves as a punishment for many. Those who are able to post a cash bond immediately suffer the loss of that financial capital, particularly if they do not have access to a lot of resources. Low-income families particularly suffer from the loss of money they need for rent, transportation, food, and other responsibilities. People who post a bond through a for-profit bail bondsman immediately lose money by paying the non-refundable fee required by the bondsman. Furthermore, many jurisdictions also require payments for court fees, etc.
Money bail theoretically could serve as a negative reinforcement to induce compliance and avoidance of more severe financial penalties; only, the negative consequences of misconduct are not conceptually clear. If a person is bonded out of jail through a bondsman because they could not afford to post the whole bond, then there is no reason to think they will have that money available to pay the full bail if they miss their court hearing or are re-arrested. There is no clear understanding of what loss they are trying to avoid; hence, the “negative reinforcement” due to pretrial compliance is lost on them.
What is clear to people who remain in jail because they cannot afford bail is the hurt this causes their families, as well as, the adverse impacts on their jobs, housing, education, and medical care. It’s time to rethink and reform our general acceptance of money bail as a critical part of our pretrial justice system. In order to assure a smooth court process and community safety, we need to institutionalize processes and standards that are proven in effectively and objectively assuring compliance to the pretrial process. We should settle for no less than a process that safeguards the rights and liberties of people accused of offenses while also protecting victims and communities.
Dr. Melissa Neal is Senior Research Associate at JPI and author of Bail Fail: Why the U.S. Should End the Practice of Using Money for Bail.
September is JPI Bail Month. Visit www.justicepolicy.org to learn more and to attend one of our events.