Introduction to The Economics of Bail and Pretrial Detention," a new report from the Hamilton Project:
On any given day, roughly 460,000 people occupy county and city jails despite not having been convicted of a crime (Zeng 2018). These unconvicted detainees constitute about 65 percent of the jail population and 24 percent of the total incarcerated population at the state and local level. Though some defendants are held because a judge has ruled that they pose a significant flight or safety risk, most others are held because they cannot afford bail (Reaves 2013).1
When an individual is arrested, the court holds a pretrial release hearing during which a judge decides whether to release the individual and whether to set any conditions for that release (see box 1 for more details). The conditions for release are often financial: the judge sets a bail amount that the defendant must provide in exchange for pretrial release. The funds are returned if the defendant presents themselves in court as required, but are forfeited otherwise. Those who are able to secure financial release typically rely on the services of private bail bondsmen, who will post bail on their behalf in exchange for a nonrefundable premium. In many cases, defendants are required to post bail that they cannot afford (or they are unable to afford the premium); this results in their detainment for weeks or even months until trial (Krupnick 2017).
Pretrial detention can sometimes be necessary to protect the public from serious safety risks and to ensure that defendants appear in court. However, pretrial detention comes at a heavy cost to defendants, who are less able to prepare a defense for themselves and whose lives (including employment activities) are severely disrupted (Pinto 2015). Detention is also costly to society, which bears the direct burden of incarcerating additional people along with the costs incurred by families, communities, and the labor market.
Proponents of the bail system argue that it enables courts to maintain pretrial accountability, avoiding unnecessary incarceration while providing defendants with an incentive to be present for any subsequent trials (Kennedy 2016). Critics of the bail system argue that it criminalizes poverty, and recent bail reform movements have resulted in legislation that would either reform or eliminate monetary bail altogether (Chávez 2018). In this economic analysis, we evaluate the evidence behind these arguments and consider the consequences of a monetary system of bail for both individuals and society.
To provide context, we first characterize the prevalence of bail in the pretrial system, looking specifically at how courts’ usage of bail has evolved over time. We observe that, regardless of offense type, both the usage of bail and the duration of pretrial detention has increased since the 1990s.
Read the full report here.
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