Land of the Detained and Home of the Poor: A Discussion of Cash Bail and Conditional Release in the United States

By Erin Valenta

Introduction 

The International Covenant for Civil and Political Rights (“ICCPR”), to which the United States is a party, states, “It shall not be the general rule that persons awaiting trial shall be detained in custody” [1]. In 2021, however, nearly 450,000 Americans were detained in local jails while awaiting disposition of their cases [2]. To obtain pretrial release, most American defendants must pay up. Pretrial release based on monetary bail has long been a fundamental aspect of the United States’ criminal justice system, predating the adoption of the Bill of Rights by the States [3]. There are technically two types of cash bail: secured and unsecured [4]. Secured bail is usually secured by the deed to a property, which will be forfeited if the defendant does not appear at all required court proceedings [5]. Unsecured bail requires a cash deposit and the defendant’s assurance that they will appear at all required court proceedings [6]. If the defendant does not appear, they must pay the predetermined bail amount [7]. The median bail amount for an American defendant charged with a felony, for example, is $10,000 [8].  

The United States stands apart in its approach to pre-disposition detention; most countries do not allow defendants to pay for release from jail [9]. Even if a country has a general bail system, it may not utilize the system often. Norway, for example, rarely employs its bail system; rather, Norwegian officials routinely release those accused of minor crimes [10]. Other defendants remain in custody until trial [11]. Some countries, including Sweden, do not have a bail system at all [12]. Instead, Swedish law provides that minor defendants may only be detained for up to three months and that adult defendants may only be detained for up to nine months [13]. 

Many scholars criticize the American cash bail system for encouraging “wealth-based detention” [14]. They argue that cash bail allows wealthy, or at least well-connected, defendants to purchase their freedom while their indigent counterparts remain detained [15]. These scholars cite studies finding that pretrial detention negatively affects defendants’ economic and sentencing outcomes [16]. For example, research shows that defendants of color are more likely to have higher bail amounts set or to be denied bail altogether than white defendants [17]. Additionally, by depriving them of the defendant’s presence and income, pre-disposition detention punishes defendants’ innocent families. Thus, cash bail is unconstitutional and should be abolished.  

Background Information 

Issued in 1215, England’s Magna Carta outlined the due process rights that bail protected [18]. Until 1275, when the Statute of Westminster I declared that certain offenses were ineligible for bail, all English offenders were able to receive bail [19]. Though its Founders were English, the United States went a more general route with its founding documents; the Eighth Amendment merely provides, “Excessive bail shall not be required, nor excessive fines imposed…” [20]. Because the Constitution does not provide criminal defendants a right to bail—even cash bail—bail law in the United States is largely legislatively and judicially created. In Carlson v. Landon, the Supreme Court held that bail is not guaranteed in all cases [21]. Thus, there are times when no sum of money can secure a defendant’s release before disposition. The Supreme Court assumed in Schilb v. Kuebel that the Eighth Amendment’s excessive bail prohibition applies to the States, but each state determines which factors its judges should consider when determining what, if any, type of bail a defendant is eligible to receive [22]. 

Analysis 

Beyond considering the Eighth Amendment and statutory factors, exactly how judges make their bail determinations is unclear. The logical correlation between pretrial detention and negative economic outcomes, however, is extremely clear. Employed defendants cannot earn their normal wages if they are detained, and they are not guaranteed to obtain one of their facility’s low-paying jobs. Many employers view missing just a few days of work as sufficient cause for termination, so even defendants who are not convicted often find themselves unemployed. Further, criminal dockets are typically public records, and the stigma that attaches to interactions with the criminal justice system lingers long after cases close.  

Detaining a defendant before their case is finalized does not impact them alone. Thirty-eight million Americans—11.5% of the country’s population—lived in poverty in 2022 [23]. As previously mentioned, nearly 450,000 Americans were held in local jails awaiting trial in 2022 [24]. The connection between poverty and pretrial detention based on the inability to pay cash bail is clear. Being held pretrial only worsens one’s economic situation. Unsurprisingly, one study suggests that defendants lose thousands of dollars in “forgone earnings and social benefits” while detained awaiting disposition [25]. 

Less obvious and even more harmful is the proven correlation between pretrial detention and harsher sentences [26]. One study found that “pretrial release significantly decreases the probability of conviction” [27]. Sadly, this decrease is primarily the result of the logical correlation between detained defendants being more likely to accept guilty pleas [28]. Another study found that “low-risk” defendants who are detained before case disposition are over five times more likely to be sentenced to jail and over three times more likely to be sentenced to prison than “low-risk” defendants released before case disposition [29]. The study also found that “moderate risk” and “high-risk” defendants who are detained before case disposition are approximately three times more likely to be incarcerated than their counterparts who are released before case disposition [30]. 

Because cash bail punishes defendants who are supposed to be presumed innocent unless and until the prosecution can prove their guilt beyond a reasonable doubt, the practice is unconstitutional [31]. Wealth-based detention harms indigent defendant’s families and communities by depriving them of the defendant’s presence and income. While bail based on conditional release has drawbacks, it is a better and more rehabilitative practice than cash bail. Conditional release allows defendants to be released while their case is pending if they comply with certain conditions [32]. For example, a defendant may need to go to drug counseling, comply with electronic monitoring, or check in with a supervising officer. Instead of penalizing a defendant for being indigent, as cash bail does, conditional release can help address the behavioral issues, like addiction, that led to the alleged crime. Thus, conditional release is better suited to rehabilitation than cash bail. Additionally, conditional release allows defendants to stay in the communities while they await disposition of their cases. Communities and defendants benefit from these arrangements.  

Conclusion 

The United States is unique in many ways, and its love for cash bail is one of its quirks. Though cash bail is straightforward, the practice does not lend itself to equity or rehabilitation. Further, wealth-based detention is clearly unconstitutional. Thus, conditional release should replace cash bail as the standard type of bail in the American criminal justice system. 

[1] International Covenant on Civil and Political Rights art. 9, cl. 3, Dec. 19, 1966, 999 U.N.T.S. 14668, 6 I.L.M. 368.  

[2] Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2024, Prison Pol’y Initiative (Mar. 14, 2024), https://www.prisonpolicy.org/reports/pie2024.html.  

[3] Matthew J. Hegreness, America’s Fundamental and Vanishing Right to Bail, 55 Ariz. L. Rev. 909, 916-917 (2013). 

[4] Erwin Chemerinsky & Laurie L. Levenson, Criminal Procedure: Adjudication 78, 3rd ed. 2018. 

[5] Id.  

[6] Id. 

[7] Id. 

[8] Sawyer & Wagner, supra note 2. 

[9] Cash Bail, ACLU Pa., https://www.aclupa.org/en/issues/criminal-justice-reform/cash-bail  (last visited Apr. 22, 2024).  

[10] Bureau of Democracy, Human Rights and Labor, 2022 Country Reports on Human Rights Practices: Norway, U.S. Dep’t. of State, https://www.state.gov/reports/2022-country-reports-on-human-rights-practices/norway/ (last visited Apr. 6, 2024). 

[11] Id. 

[12] Bureau of Democracy, Human Rights and Labor, 2022 Country Reports on Human Rights Practices: Sweden, U.S. Dep’t. of State, https://www.state.gov/reports/2022-country-reports-on-human-rights-practices/sweden/ (last visited Apr. 6, 2024). 

[13] Id. 

[14] See Liza Batkin, Wealth-Based Equal Process and Cash Bail, 96 N.Y. U. L. Rev. 1549 (2021); Closing Mass Incarceration’s Front Door, Vera Inst. Just., https://www.vera.org/ending-mass-incarceration/criminalization-racial-disparities/bail-reform/closing-mass-incarcerations-front-door-initiative (last visited Apr. 5, 2024); Adureh Onyekwere, How Cash Bail Works, Brennan Ctr. for Just. (Feb. 24, 2021), https://www.brennancenter.org/our-work/research-reports/how-cash-bail-works; Cash Bail, supra note 9. 

[15] Batkin, supra note 14; Closing Mass Incarceration’s Front Door, supra note 14; Onyekwere, supra note 14; Cash Bail, supra note 9. 

[16] See Will Dobbie, Jacob Goldin & Crystal S. Yang, The Effects of Pretrial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges, 108 Am. Econ. Rev. 201 (Feb. 2018); Christopher T. Lowenkamp, Marie VanNostrand & Alexander Holsinger, Investigating the Impact of Pretrial Detention on Sentencing Outcomes, The Laura & John Arnold Found. (Nov. 2013), https://craftmediabucket.s3.amazonaws.com/uploads/PDFs/LJAF_Report_state-sentencing_FNL.pdf. 

[17] See Lydette S. Assefa, Assessing Dangerousness Amidst Racial Stereotypes: An Analysis of the Role of Racial Bias in Bond Decisions and Ideas for Reform, 108 J. Crim. L. & Criminology 653 (2018); David Arnold, Will Dobbie & Crystal S. Yang, Racial Bias in Bail Decisions, 133 Q. J. Econ. 201 (Feb. 2018).  

[18] Hegreness, supra note 3, at 917. 

[19] Id.  

[20] U.S. Const. amend. XIII. 

[21] Carlson v. Landon, 342 U.S. 524, 537 (1952). 

[22] Schilb v. Kuebel, 404 U.S. 357, 365 (1971); Chemerinsky & Levenson, supra note 4, at 77. 

[23] Emily A. Shrider & John Creamer, Poverty in the United States: 2022, U.S. Census Bureau 

(Sept. 12, 2023), https://www.census.gov/library/publications/2023/demo/p60-280.html.  

[24] Criminal Records and Reentry Toolkit, Nat’l. Conf. of State Legislatures (Mar. 31, 2023), https://www.ncsl.org/civil-and-criminal-justice/criminal-records-and-reentry-toolkit.  

[25] Will Dobbie & Crystal Yang, The Economic Costs of Pretrial Detention, Brookings Papers on Econ. Activity 251 (2021). 

[26] Batkin, supra note 14; Closing Mass Incarceration’s Front Door, supra note 14; Onyekwere, supra note 14; Cash Bail, supra note 9.  

[27] Dobbie, Goldin & Yang, supra note 16, at 236. 

[28] Id. 

[29] See Lowenkamp, VanNostrand & Holsinger, supra note 16, at 4. 

[30] Id. 

[31] See United States v. Coffin, 156 U.S. 432 (1895); Taylor v. Kentucky, 436 U.S. 478 (1978); Sandstrom v. Montana, 442 U.S. 510 (1979).  

[32] Chemerinsky & Levenson, supra note 4, at 78.