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America’s bail system punishes poor people — even if they're innocent of any crime

A new study finds forcing people to pay money to get out of jail leads to more innocent people in prison.

A prison fence. John Greim/LightRocket via Getty Images

Over the past week, bail — that thing you pay to get out of jail while awaiting trial — has been in the news as the US Department of Justice declared the current bail system is unconstitutional, siding with a man in Georgia who was forced to spend six days in jail over a misdemeanor charge because he couldn’t afford the $160 bail to get out.

The idea behind money bail is to provide an incentive for someone to return to court, since he can recoup the cost if he comes back for required court appearances. But in reality, the result is obviously unjust — it is simply much easier for wealthy people to afford bail. This leaves poor people languishing in jail just because they can’t pay bail, even though they have only been accused — but not formally convicted — of a crime at that point in the trial process.

But a new study shows two other worrying consequences of the current bail system: more crime and false convictions. Specifically, the study by Arpit Gupta, Christopher Hansman, and Ethan Frenchman found that the assignment of money bail caused a 6 to 9 percent increase in recidivism (when people convicted of previous crimes reoffend) in Philadelphia and Pittsburgh and a 12 percent increase in convictions in Philadelphia.

To measure this, the researchers exploited how different judges assign bail and the randomized nature through which judges are assigned cases. This created a natural experiment setting that allowed the researchers to largely isolate bail and its effects.

When they did that, they found bail had some pretty pronounced effects. What’s more, it seemed like the key factor here was whether someone was assigned bail, not how high bail was. So someone’s bail could be $100 instead of $500 or $5,000, and it still appeared to have an effect. “A key implication of this finding is that simply lowering required bail amounts will not ameliorate harms imposed by money bail,” the researchers write.

What’s more, the majority of those affected were very likely poor: “It is important to note that a large majority of arrestees in our sample qualified for representation by the public defender, and therefore are presumably indigent.”

The researchers put forward a possible explanation for their findings:

Money bail, as a source of pretrial detention, imposes significant costs on defendants. As the Supreme Court has written, pretrial detention “may imperil the suspect’s job, interrupt his source of income, . . . impair his family relationships [and affect his] ability to assist in preparation of his defense.” Many defendants who are detained on money bail before trial may consequently choose to plead guilty to avoid or minimize further detention. … Money bail may also directly influence recidivism through the harms of pretrial incarceration imposed upon those unable to make bail, post-trial incarceration following conviction, or the stigma of conviction.

In other words, poor people may plead guilty simply because it’s the only way they can get out of jail quickly — potentially leading to more false convictions as innocent people admit to crimes they didn’t commit. And these convictions, along with the effects of getting locked up in the first place, may also harm people’s abilities to obtain or keep a legal job, pushing them to turn to a life of crime to make ends meet.

There are some caveats to the study. As the researchers acknowledge, it’s possible that they’re not fully isolating bail and its effects. For instance, maybe the recidivism results are partly explained by the arrest record, since that might hinder someone’s ability to get a legal job.

Since the study was done exclusively in Philadelphia and Pittsburgh, it’s also not clear if the findings apply nationwide. Perhaps there are technical differences in how bail and courts work in Philadelphia, Pittsburgh, or throughout Pennsylvania — although, as the researchers note, bail works broadly similarly in these jurisdictions as it does in many other parts of the country, including New York City and Baltimore.

There’s a lot of evidence that bail hurts the poor. But the system doesn’t have to work this way.

Intuitively, the findings make sense. Jail is a terrible place, so people might be willing to confess to a crime they didn’t commit — especially one that doesn’t require prison time — just to get out without paying the bail they can’t afford. And exposure to the criminal justice system does heighten someone’s propensity to crime: For example, jail can put defendants in housing, and therefore lets them build relationships, with people who may be in a gang or otherwise involved in criminal activities. And an arrest record for even minor crimes can damage someone’s ability to get or maintain a legal job.

Indeed, the study is backed by a lot of other evidence. Take this piece from a lengthy investigation by Nick Pinto for the New York Times Magazine:

[The Bronx Freedom Fund] bailed out nearly 200 [low-income] defendants and generated some illuminating statistics. Ninety-six percent of the fund's clients made it to every one of their court appearances, a return rate higher even than that of people who posted their own bail. More than half of the Freedom Fund's clients, now able to fight their cases outside jail, saw their charges completely dismissed. Not a single client went to jail on the charges for which bail had been posted. By comparison, defendants held on bail for the duration of their cases were convicted 92 percent of the time. The numbers showed what everyone familiar with the system already knew anecdotally: Bail makes poor people who would otherwise win their cases plead guilty.

At the same time, it’s worth considering why the system is this way. Public officials are legitimately worried about the possibility that, for example, someone will be let out of jail solely because he’s poor, only for him to go into hiding or commit more crimes. Not only would that be potentially disastrous for public safety, but for the elected officials involved — lawmakers, judges, prosecutors — it’s a significant political risk.

But there are alternatives. In federal courts and Washington, DC, courts are only allowed to set bail if the defendant can afford it. To ensure people don't flee or commit a crime while out, the system checks if someone poses a flight risk or is dangerous. If a judge decides a defendant does not pose a risk, the person can go home, where he or she may be monitored further by drug tests and ankle monitors.

In DC, the system has worked: 90 percent of released defendants made all scheduled court appearances, and 91 percent remained arrest-free while their cases proceeded.

This can also cost governments less money: An analysis by the Administrative Office of US Courts found supervision by pretrial services officers costs about a tenth as much as keeping someone locked up.

But changes have come slowly, leaving reformers to set up charity bail funds to bail out poor people for the time being. As Alysia Santo wrote for the Marshall Project, these funds have cropped up in Chicago, Boston, the Bronx, Brooklyn, Nashville, Seattle, and more. And they're under consideration in St. Louis, Miami, Cincinnati, Oakland, Philadelphia, and Austin. So far, they have paid for hundreds of people’s bail, adding up to hundreds of thousands of dollars.

Take this one story reported by Santo, again demonstrating how potentially innocent people are swept up by the current bail system:

One recent client was Steven Cordon, 23, who was accused of having 1.6 grams of crack cocaine and was booked into Chicago’s Cook County Jail this April because he didn’t have $2,000 to bail himself out. He pleaded not guilty to drug possession and sat behind bars for a month awaiting trial before the Chicago fund was alerted to his case. The fund paid for his release on May 1, and four days later, a judge dismissed the charges, citing a lack of probable cause.

The funds provide an important measure of relief for poor people in jail. But they also speak to the state of the bail system in most of America: It’s increasingly turned into something that requires an act of charity to address.