Criticism of the practice of giving bail in the United States tends to be directed at the system of cash bail. A core assumption underlying the system of cash bail is the idea that defendants are more likely to avoid criminal activity and attend court if they have a negative financial incentive. Critics of the system of cash bail often argue that this assumption is incorrect. Low-cost alternatives that can increase appearances in court include automated court notification reminders via text messages. A 2015 study of a "large northern urban jurisdiction in the United States" found that women who were released on bond had their bond set on average 54% lower than the bond that men were required to pay for comparable offenses. Based upon their findings and a review of other articles that examined gender-based disparities in criminal prosecutions, the authors asserted that there is strong evidence that women were more likely than men to be treated leniently by the judicial system. Studies have documented that "the field of bail produces patterned and predictable harms that disproportionally fall on the poor and people of color." The system has been shown to be affected by racial bias against Black and Latin American defendants as compared to white defendants. White defendants are more likely to be released and less likely to have financial bail set. A defendant's chance of being released pre-trial is affected by how wealthy they are, with the intersection of wealth and race working against people of color. In the high-profile cases of
Bernie Madoff and
Marc Dreier, the defendants avoided pre-trial detention despite huge flight risks, simply because they had the money to pay the court exorbitant sums. This is in accordance to the current interpretation of the Bail Reform Act of 1984, which allows the wealthy to avoid pretrial detainment by paying for highly restrictive measures that ensure constant supervision. This means that a poor defendant could end up held in jail while waiting for a trial, while a wealthy defendant would only face
house arrest while waiting trial for the same offense. Bail reformists claim that this is a direct violation of the Fourteenth Amendment's
Equal Protection Clause, which states that laws must be applied against all citizens equally.
Unnecessary incarceration Reform campaigners argue that the cash bail system results in unnecessary detentions, and propose reforms that will reduce the
jail population. Advocates for harsher bail enforcement argue that low or no bail increases the risk that defendants may skip their trial (known as
flight risk). However, a study conducted by Gerald R. Wheeler and Carol L. Wheeler published by the
Review of Policy Research finds that this is hardly the case. The paper concluded that the flight risk of arrestees out on bail was extremely minimal, as only 2% of all defendants on pretrial leave avoided their trial date.
Socioeconomic effects At the community level, pretrial detention has been found to negatively affect local labor markets, especially in areas with relatively high percentages of Black residents. Whether a result of pre-trial detention or not, incarceration has adverse individual-level effects, resulting in many defendants' inability to maintain employment, access mental and physical healthcare, and engage in constant communication with their family and friends. This effect on the youth community is a large reason why activists lobby for bail reform, seeking to prevent the next generation from being trapped in the
school-to-prison pipeline. The VISTA bail bond program in Baltimore in the 1960s, which dealt with 16-20 year old defendants, in
Manhattan, New York City Even if it is eventually refunded, producing the bail money is a huge expense to the defendant and their family. The United States is one of the few countries in the world that permit defendants to use a
bail bondsman. In return for a non-refundable payment, the bail bondsman will pay the bail amount and receive it when the trial is over. Bail bonds are a profitable industry, making $20 million a year in profit according to a 2012 study. Bail reform campaigners have criticized the bail bond industry for profiting off poor defendants and for creating
perverse incentives by involving a for-profit industry in the judicial process, which is related to wider criticism of the
prison-industrial complex.
Juror bias In 2014, a study done over 975 New Jersey cases tracked a defendant's ability to set bail and the outcome of their trial, and concluded that pretrial detention adversely impacts the length of sentencing in cases of conviction. That is to say, within the same offense type, those unable to post bail received longer sentences than those able to. Legally, bail determination is based on four factors: seriousness of the crime, ties to the community, the flight risk posed by the defendant, and the danger posed by the defendant to the community. California Penal Code section 1269b provides an example of the factors courts are directed to consider. In reality, bail determination may also take into account extraneous factors. Some studies have found judicial bias, where a defendant's race, class, or gender affect bail. A 1984 study found that when judges were given specific policy guidelines, people with similar convictions were given similar bail amounts. This is an oft cited reason as to why bail reform is necessary, as ambiguity in the bail decision-making process may lead to unfair and disparate outcomes. Even for bail determination based on the danger posed by the defendant to the community, critics note that the government's definition of "dangerous" defendants who may not be allowed to go on bail have a tendency not to be dangerous or avoid their hearings at all, suggesting that the definition is too wide and needs to be reformed. There is reason to believe that a correlation exists between class status and bail decisions. Recent analysis of data taken from Florida bail hearings revealed that indigent defendants with public defenders were more likely to be denied bail when compared to those with retained (hired) counsel, but that when they were awarded bail, it was set lower. Several suggested explanations for this result include higher skill level of retained counsel and
prison overcrowding. Many prison systems face overcrowding in the modern area of
mass incarceration, and setting unusually low bails appear to be the judge's way of relieving pressure for local prisons.
Effect on trials Moreover, a court's decision to grant or deny bail has a direct impact on the outcome of a criminal case. Incarcerated defendants are significantly less able to prepare a legal defense compared with someone on bail who is unrestricted or perhaps conditionally restricted to home confinement. They are also unable to arrange meetings with suspected witnesses, and/or provide their attorney with important information about the case, thus creating logistical barriers. Furthermore, the paper finds that because more defendants are now less likely to be allowed a pretrial release, the prosecution's bargaining position is enhanced in plea negotiations, where incarcerated defendants are promised time off in exchange for their cooperation or plea of guilty. People that are denied bail are more likely to plead guilty whether or not they are actually guilty, and empirical research has found that pretrial detention can be particularly improperly coercive for people held on low-level charges, since their official sentences of incarceration would often be shorter than the time they are incarcerated pretrial Further, those denied bail and held pretrial are often sentenced to longer amounts of time than those who are granted pretrial release.
Bias Moreover, bail policies and bail decisions have been demonstrated to be applied disproportionately harmfully against black and Latino defendants, particularly males. Test data from the bail bond market in New Haven, Connecticut, also shows the existence of discrimination based on race when bail is set for minority defendants. Specifically, black and Hispanic defendants generally received disproportionately high bail charges. In order to fight against racial discrimination, some suggest a "color-blind" bail solution that sets bail based on the average offender, regardless of race or gender. == Reform ==