Cash Bail: Criminalizing Poverty or Prioritizing Safety?

One of the key points of President Joe Biden’s criminal justice reform campaign message was the elimination of cash bail from the country’s pretrial system. The idea, which has received denunciations mostly from Republicans and support from Democrats, was introduced in a 42-page proposal called the National Strategy on Gender Equity and Equality in October 2021. As the Eighth Amendment of the Constitution asserts that “Excessive bail shall not be required,” many courts also have “bail schedules,” with recommended bail rates based on the crime, in order to avoid “excessive bail.” Given this, what, exactly, would a pretrial cashless bail system look like?

Proponents of a cashless bail system argue that pretrial cash bail essentially criminalizes poverty. It means that those who can afford bail are able to pay their way out and continue with their lives, keeping connections with their families and jobs, while those who cannot afford bail are forced to remain detained and disconnected from their lives, or must get a bail bond that may put them into debt.

Several studies have examined the effects of a cashless bail system on re-offending rates. An article published in the Stanford Law Review uses data from Harris County, Texas, to argue that those who were unable to pay bail and were thereby detained until their trial, were more likely to re-offend after their releases. The article attempts to suggest that there is a “criminogenic effect” associated with detaining people pretrial. However, the data alone cannot show that, and cannot rule out the possibility of poverty being positively correlated with criminal behavior. This seems to indicate that while eliminating cash bail and the pretrial system altogether sounds appealing at face value — eradicating the unequal economic burden of cash bail — the issue is more complex. In fact, a broad literature, which includes research from the Brookings Institute, corroborates the positive correlation between impoverishment and criminality.

Eliminating the cash bail right now is also being met with a liberal amount of criticism. In the summer of 2020 when the pandemic was raging, the US also saw a large spike in looting, rioting, and violent crimes. Statistics from the Federal Bureau of Investigation show that last year there were 30% more murders, and 5% more violent crimes such as assault, rape, and robbery. Removing the only pretrial barrier to keep violent criminals off of the streets after Americans saw a rise in violence, in many cases in their own neighborhoods, would be detrimental to many Americans and the country’s overall, already-increasing crime rates. It makes the most sense to prevent more crimes from being committed pretrial through the disincentive of cash bail than to do away with cash bail and have a greater chance of those same criminals re-offending before trial, simply because of the sheer number of criminals back on the streets.

The wording in Biden’s proposal also supposes that the USA has never achieved the view that “every one of us is equal in dignity and deserves to be treated equally.” The irony must be lost on the Biden administration. Equality is the sameness of opportunity, which the laws — including the disincentive of cash bail — afford everyone. Equity, however, is the sameness of outcome, which is not something that is guaranteed, nor should it be desired.

Some cities that have already implemented cashless bail have seen disastrous results. A study conducted by Princeton, Harvard, and Stanford researchers found that releasing detainees prior to trial increases rearrest rates by 37%, and increases the failure to show up for trial by 127%. A perfect example of this involves Isaac Rodriguez, who made New York Post headlines after being arrested 57 times just this year, adding to his rap sheet to make 74 charges since 2015. Not only does New York state not have cash bail for many nonviolent offenses, but the Democrat-supported law does not give judges the discretion to detain nonviolent defendants at all, allowing Rodriguez to continue his shoplifting spree.

The worst part about the president’s wording in the proposal is that this policy is supposed to “ensure fair treatment for women and girls in justice systems,” but neglects to consider how this might affect the female victims of the criminals from whom the justice system is supposed to protect them. The anecdotes are enough to make your skin crawl. For example, Tiffany Harris, a black woman from Brooklyn, allegedly assaulted three Jewish women, and after she was released one day, was rearrested the next for another assault charge. Another New York City woman who was released in July 2020 was caught on video shoving another woman into a subway train.

One possibility might be to replace the pretrial system instead of removing it entirely. A pretrial reform bill that passed in New Jersey in 2014 and took effect in 2017, offers a potential path forward. The new system uses a public-safety assessment tool designed by the Laura and John Arnold Foundation that applies data from over 1.5 million cases from over 300 jurisdictions to make predictions about re-offending rates and trial return rates. The only statistics being published since the bill’s enactment are about incarceration rates as opposed to pretrial and post-trial crime rates for defendants; however, keeping some sort of pretrial system in place to protect American citizens from becoming victims of crime is the key. “[People] need to wake up to the reality of what’s coming if cashless bail becomes the law of the land. If you think it’s bad now…just wait,” says the Founder and CEO of Crime Survivors Patricia Wenskunas.

And that is precisely where the Biden administration is missing the mark. They are placing all of the emphasis on equality and equity for the criminals, rather than placing the emphasis on safety and security for the law-abiding. Eliminating cash bail amid the current crime wave is not only not worth the political nightmare it may cause Democrats — especially with the 2022 midterms approaching in a year — but it is not worth having innocent lives harmed. The system as it is now is equal. Changing the system to achieve so-called “equity” for a specific race or sex does not make the system fairer or safer. By definition, it would be doing the opposite.

Connor Wayne Kraska is a Junior at Brown University studying Economics and International and Public Affairs. He currently serves as a Staff Writer for the Brown Undergraduate Law Review and can be contacted at connor_kraska@brown.edu.