Cash bail, explained: How it works and why criminal justice reformers want to get rid of it

The Pennsylvania Supreme Court announced last week that it would investigate cash bail practices in Philadelphia, home to the state’s largest municipal court system.

The court order was welcome news to criminal justice reform advocates, who say the bail system unconstitutionally incarcerates poor defendants who haven’t been convicted of crimes.

Pre-trial detention is supposed to keep the public safer and make sure people show up for court. But the Pennsylvania branch of the American Civil Liberties Union argues that Philadelphia’s cash bail system does neither, and instead “effectively criminalizes poverty.” 

What is bail?

Bail payments allow someone accused of a crime to leave jail while they wait months or years for their case to go to court.

In exchange for a payment to the court, defendants can wait for their trials in the comfort of their own homes.

Money bail is a centuries-old practice. As early as the year 400, defendants in Anglo-Saxon courts in England had to find a friend or family member — called a “surety”– who would agree to pay a settlement if they failed to appear in court.

Today, anyone in the American court system who’s been charged with a crime is entitled to a bail hearing shortly after their arrest. At this point, all defendants are supposed to be presumed innocent until proven guilty.

At this pre-trial hearing, judges  — or magistrates, as they’re called in Pennsylvania — get to decide whether or not to keep the defendant in jail before their trial. The judge may keep a defendant detained if he’s deemed dangerous to the public, or if there’s a good reason to think he won’t show up for court. 

But more often, the judge will give defendants the option to post bail.

How much does bail cost?

That depends on the severity of a crime, as well as the whims of a judge and prosecutors. 

The 8th Amendment of the Bill of Rights protects defendants from “excessive bail” and fees. But as the journalist and lawyer Emily Bazelon writes in her book Charged, judges have wide discretion in setting the final amount. 

Judges can consider someone’s financial status, but they don’t have to. They can also take into account someone’s perceived flight risk and the nature of their crime — a defendant accused of shoplifting, for instance, should get a lower bail amount than one charged with armed robbery.

It’s hard to identify the average bail amount in Pennsylvania, since the state doesn’t collect or disclose bail bond contracts or fees, according to The Appeal, a criminal justice news site. In Philadelphia courts in 2018, bail amounts varied from a few thousand dollars for low-level offenders to $250,000 for a serious charge like illegal gun possession, according to the ACLU.

But research shows that bail amounts depend more on a defendant’s race and social standing than their alleged crime or ability to pay.

A study by the New York City Criminal Justice Agency found that the input of a prosecutor has an “overwhelming influence” on a judge’s decision to setting bail.

A 2016 University of Pittsburgh study of bail in Philadelphia also found that black defendants were given higher bail amounts and held an average of two weeks longer than other defendants.

When a judge arrives at a bail amount, defendants and their families have to cough up the payment in full cash at a courthouse. 

In most places, defendants get that money back (minus processing fees) if they appear for court. That’s been the case in Philadelphia since 2018, when municipal courts ended their policy of withholding 30 percent of bail money from defendants who met their court obligations.

What if you can’t afford it?

Defendants who can’t afford their bail have two options. 

They can pay a non-refundable premium — usually no more than 10 percent of the bail amount– to a bail bond company, which will guarantee the remaining balance to the court.

If the defendant fails to show up for trial, they’re indebted to the bond company, which will likely charge high interest rates. (Today, the for-profit bail bond industry fights in courts and statehouses to preserve the cash bail system, according to the Marshall Project, a criminal justice news site.)

People who can’t scrape together a bail payment will remain in jail until their trial date. Researchers say this encourages innocent people to accept plea deals to get out of jail sooner.

The 2016 study of Philadelphia cash bail found that pretrial detention lead to a 13 percent increase in the likelihood of being convicted, the result of defendants accepting plea deals before their cases went to trial.

The case against cash bail

Critics of the modern-day bail system, who hail from both sides of the political aisle, say it’s unfair and potentially unconstitutional to jail a defendant just because they can’t afford a bail payment.

That’s the argument made in ACLU suit, which argues that bail magistrates in Philadelphia set excessive cash bail amounts for thousands of poor defendants who were supposed to be presumed innocent.

After observing thousands of bail hearings, the ACLU found that the average proceeding lasted less than three minutes, and that few magistrates inquired about a defendant’s ability to pay bail.

Excessive bail payments have consequences for the public as well as defendants. In fact, in the vast majority of cases, “bail doesn’t make the public safer and it’s not necessary to make sure people come back to court,” Bazelon writes in Charged. 

She points to research from Harris County, Texas, which found that misdemeanor defendants detained before their trials were 30 percent more likely to commit a new felony in the 18 months after a bail hearing than people who were released. They were also 20 percent more likely to commit new misdemeanors.

Bail opponents also argue that it’s expensive to detain people who are awaiting trial. 

Roughly two-thirds of the people held in state and county jails on a given day are there because they can’t post bail, according to Bazelon. The cost of locking them up is $25 million a day and $9 billion a year. 

Under Pennsylvania’s landmark Clean Slate law, 30 million criminal records are now eligible for automatic sealing