Worried that someone you love is jailed only because they can’t pay? Cash bail reform aims to fix that. Evidence shows money bail jails many people for being poor, and New Jersey swapped it for risk-based decisions.
This page is part of the site’s wider look at criminal justice reform.
| Key fact | Value |
|---|---|
| Growth in pretrial detention, 1970 to 2015 | 433 percent increase |
| Inmates held before trial because they could not afford bail | More than 60 percent |
| People in U.S. pretrial detention | Nearly 500,000 |
| New Jersey jail population held pretrial for inability to pay, before its reform | 38% |
| Year New Jersey implemented comprehensive bail reform | 2017 |
The figures come from the U.S. Commission on Civil Rights bail report and the Evidence for Action project summary. Figures can change, so check the sources before you rely on them.
Why cash bail is under scrutiny
Under money bail, a person who has been arrested but not convicted pays to be released while the case moves forward. Those who cannot pay stay in jail. The Evidence for Action summary says nearly 500,000 legally innocent people in the U.S. are in pretrial detention, and that the inability to afford bail disproportionately affects Black Americans and people living in poverty.
The U.S. Commission on Civil Rights held a virtual briefing in February 2021 and published its report in January 2022. Panelists included members of state judiciaries, law enforcement, policy experts, reform advocates and legal scholars. That mix matters, because the debate is not only advocates against courts.
What the data show about who is held
The commission’s report found a 433 percent increase in the number of people detained before trial between 1970 and 2015. Pretrial detainees also made up a larger share of the total incarcerated population over the same period, according to the report’s transmittal letter.
The same letter says data show that more than 60 percent of inmates are detained before trial because they cannot afford to post bail. It also describes disparities by race, gender and income:
- Race: Black and Latinx individuals have higher rates of pretrial detention and have financial conditions of release imposed much more often than other demographic groups.
- Gender: males are less likely to be granted non-financial release and consistently have higher bails set than women.
- Income: disparities also exist between people of different socioeconomic status.
If you want the wider picture of how detention grew, read this explainer on what is mass incarceration.
How pretrial detention affects housing, work and reentry
Time in jail before trial does not only cost freedom. The commission’s report lists several negative consequences for the detained population:
- An increased likelihood of being convicted.
- Lack of access to housing.
- Detrimental effects on employment status.
- Increased recidivism.
For people building a life after jail or prison, these effects stack. A lost job or lost home during detention means starting from further behind. Later barriers, such as restoring voting rights after felony conviction, sit further along the same path.
New Jersey’s 2017 reform as a test case
In 2017, New Jersey implemented one of the most comprehensive bail reforms to date, according to the Evidence for Action summary. The law moved the state from a resource-based approach, in which 38% of the jail population was held pretrial because they could not afford bail, to a risk-based approach. An empirical risk assessment tool now helps determine whether someone is detained.
A research project listed there asks whether community health improved, worsened or stayed the same after the reform, compared with control states. It uses synthetic control methods to compare New Jersey with a closely matched control group. The outcomes it tracks include:
- Drug and alcohol-related deaths.
- Firearm violence and deaths.
- Intimate partner violence.
- Prenatal care use and birth outcomes.
- Jail incarceration, unemployment and evictions.
The page lists the project as in progress, with a start date of January 2023, so newer findings may exist. It links related coverage, including a headline that a Drexel study found the reform reduced incarceration without increasing gun violence. Treat headlines as pointers, and read the underlying studies before you rely on them.
Reform options on the table
The commission’s letter says state and local jurisdictions have taken several steps. These include:
- Applying risk assessment tools.
- Wider collection of demographic data.
- Implementing diversion programs.
- Using “compassionate release” policies.
For a federal response, panelists suggested better funding, including a re-examined grant-making strategy at the Department of Justice. Others suggested the department could take a “monitoring and compliance role,” or ask states to expand mandatory release. Some stakeholders also suggested the federal government work with Congress to pass cash bail-free legislation. These were panel suggestions, not adopted policy.
Neither source treats a risk-based system as a simple fix. The Evidence for Action project explicitly asks whether improvements were equal for Black and white residents.
How to judge a bail reform proposal
Headlines about reform can sound alike while the details differ. These questions help you compare proposals:
- What replaces money as the basis for release, and who decides?
- Does the plan collect and publish data by race, gender and income?
- Is there an independent evaluation of outcomes, such as jail populations, employment and housing?
- Are there supports in place, such as diversion programs, for people who are released?
This site gives education, not legal advice. If you or a relative is being held now, the local public defender or a legal aid office can explain the rules where you live.
Frequently asked questions
What is cash bail?
Show answer
It is a system in which release before trial depends on paying money. People who cannot pay can remain in jail while their case is pending, even though they have not been convicted.
Does ending cash bail mean everyone is released?
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No. In New Jersey, the reform replaced a resource-based approach with a risk-based one, and a risk assessment tool helps determine whether someone is detained, according to the Evidence for Action summary. Detention decisions still happen, but money is not the deciding factor.
Who is most affected by cash bail?
Show answer
The commission’s report describes higher pretrial detention for Black and Latinx individuals, higher bail for men than for women, and disparities by socioeconomic status.
Did New Jersey’s reform increase violence?
Show answer
The Evidence for Action page lists a project studying firearm violence and fatal violence against women after the reform. It also links coverage reporting no increase in gun violence. The project is listed as in progress, so check the published studies for the latest findings.
What could the federal government do?
Show answer
Panelists in the commission’s report suggested Department of Justice grants, monitoring and compliance, expanded mandatory release, and cash bail-free legislation passed with Congress.
