As fears about rising crime have escalated in recent years, a wide range of reforms to the criminal legal system have come under attack.1 These politically motivated and unfounded claims come as reforms have seen years of growing popularity in response to widespread concern that the system fails to deliver on its promises of fairness, justice, and public safety.2 No reform measure has drawn as much attention as efforts to eliminate cash bail.
The causes of the recent rise in violent crime are ambiguous and complex, leaving the door open for those who seek easy answers or to place the blame on criminal legal reform policies.3 Despite a growing body of evidence that bail reform policies are not linked to rising crime rates, they are a target for those looking to score political points.4 What these sound bites and scare tactics fail to capture is that current practices in cash bail systems undermine public safety and increase recidivism. Cash bail has been associated with a 6 percent to 9 percent increase in recidivism.5 Pretrial incarceration, which is a frequent result of unaffordable cash bail, has a “criminogenic effect,” meaning that it increases, rather than decreases, crime.6 The system further harms public safety by putting at risk individuals’ and communities’ health, economic stability, employment, familial relationships, and housing at risk—and has been doing so for decades. Cash bail reforms are the antidote to a system that is rooted in systemic racism and that perpetuates racial and economic disparities throughout the criminal legal system.
Illinois’ cash bail system
Next year, Illinois will replace an unjust cash bail system that prioritizes wealth over public safety. The Pretrial Fairness Act, which is part of a larger state legislative package known as the SAFE-T Act, is set to be implemented in January 2023, after being signed into law in January 2021.7 The Pretrial Fairness Act eliminates the role money plays in the pretrial decision-making process, moving away from a system that jails people for being poor to one that centers both public safety and fairness.8 Yet as the implementation date approaches, opponents have flooded the airwaves with lies, misinformation, and fearmongering to stir up opposition.9
Media outlets and elected officials have misled people to believe that once the law is implemented, every arrested person will be released pretrial without any means of accountability.10 In reality, judges will maintain their discretion to assign a variety of conditions to promote accountability and public safety and deny release to individuals accused of serious crimes.11 Some residents of Illinois were sent fake newspapers that falsely claimed that immediate mass jail releases would begin on January 1.12 Viral TikToks have made unsupported comparisons between this bail reform and the “The Purge” movie franchise, which is based on the conceit that all crime is legal for 12 hours each year.13 This misinformation campaign has sown fear and confusion among Illinois voters, distracting them from the threats that current cash bail systems pose to safety.
Overwhelming evidence from jurisdictions across the country indicates that bail reform can be implemented safely.14 This is welcome news, as the status quo threatens safety in both direct and indirect ways.15 This issue brief highlights five ways in which cash bail makes individuals and communities less safe through negative effects on: 1) health, 2) economic stability, 3) employment, 4) familial relationships, and 5) housing.
Read more on cash bail
1. Cash bail threatens the health of those arrested, their families, and their communities
Health is a fundamental characteristic of personal safety and is intimately related to people’s overall quality of life and their ability to work, maintain housing, and care for their families. Pretrial incarceration, which often results from an inability to pay cash bail,16 poses an immediate threat to the health and physical safety of those incarcerated:
- Suicide is the leading cause of death in jails, and people detained pretrial are six times more likely to die by suicide than people who have been convicted and sentenced.17
- 1 in 30 people in jail report experiencing sexual assault while incarcerated.18
- Incarceration poses particular threats for disabled people.19 Even though reported rates of disability are four times higher among people who are incarcerated than among people who are not,20 many jails are not equipped to screen for disability or provide disabled people with necessary accommodations. This lack of disability resources can result in worsening health, injury, and even death.21
People in jail tend to have greater health needs than the general population, and many jails lack the resources necessary to meet their needs.22 High volumes of admissions and the shorter length of jail stays in comparison to prison stays create additional barriers to properly screening for health concerns and providing care.23 As a result, many health needs go unaddressed:
- A 2011–2012 survey of jails revealed that 45 percent of people in jails experienced a chronic illness, compared with 27 percent of the general public.24
- Despite a high prevalence of opioid use disorder (OUD) among jail populations, just 120 out of the 3,100 U.S. jails offer methadone or buprenorphine,25 medications that have proved effective in treating people with OUD26 and reducing relapse or overdose upon release.27
- People in jails have a four to six times higher prevalence of mental illness than the general population, yet a mere 17 percent of people have access to the mental health symptoms resources and services they need while in jail.28
Pretrial incarceration also causes disruptions in ongoing health coverage and threatens individuals’ continuity of care,29 potentially exacerbating the health issues of those incarcerated.30 After release, those individuals then have the burden of reenrolling in coverage and reestablishing care relationships.31 While some supportive programs and policies exist to help people transition back into health coverage upon release, cash bail reform presents an opportunity to eliminate these administrative hurdles altogether.
Story spotlight: Pretrial community support helped a man break the cycle of incarceration
Cash bail and pretrial incarceration result in circumstances that are hazardous to people’s health. But release, with the support of pretrial services, can make it easier for people to access the resources and treatment they need. According to an Arnold Ventures article, P.C., who had a substance use disorder, was stuck in a cycle of incarceration for years. Though he was released from jail many times, he was only able to address his addiction once he had the opportunity to participate in a daily supervised pretrial program. This program allowed him to access treatment for substance use disorder and connect with other formerly incarcerated people with similar experiences. After getting the care he needed, P.C. broke the cycle of incarceration, found employment, and even started a nonprofit that supports people affected by the criminal legal system. P.C said he believes programs like this are “a must in pretrial.”32
In 2020 and 2021, COVID-19 rates were high in jails and prisons across the country despite early warnings of the risk of spread in congregate care facilities and surrounding communities. High rates of transmission coupled with high rates of disability in jails meant that hundreds of people at increased risk for serious COVID-19 complications were trapped in dangerous environments. Jails and prisons are “intricately linked”33 to the community through workers, visitors, and people who have been released. Frequent, short-term admissions to facilities,34 coupled with inadequate management of COVID-19 cases,35 facilitated spread from jails to nearby communities.
A study of COVID-19 spread in Illinois, for example, suggests that 15.7 percent of documented COVID-19 cases in the state, as well as 15.9 percent of documented cases in Chicago, as of April 19, 2020, were related to people cycling through the Cook County jail.36 Another study found that areas across the United States with larger incarcerated populations had earlier confirmed cases and more severe outbreaks.37
2. Cash bail and pretrial incarceration drain valuable economic resources from families and communities
Cash bail disproportionately affects people of color and those with the fewest financial resources:
- People of color are more likely to be assigned cash bail than their white counterparts.38
- Bail amounts for Black and Latino men are 35 percent and 19 percent higher, respectively, than amounts for their white counterparts.39
- The median income of people in jail is less than half the median income of people in the general public, and most people who are unable to afford cash bail are from the poorest one-third of society.40
The burden of paying cash bail is often spread among individuals, parents, siblings, grandparents, friends, partners, and larger community networks.41 Paying cash bail disrupts the economic stability of everyone involved, and economic instability is known to increase the risk of crime and violence.42
In a Philadelphia study, for example, half of the men employed prior to incarceration were their families’ primary source of income,43 meaning that cash bail threatened the economic stability of their families. Moreover, people incarcerated pretrial were found to earn $1,104 less within the four years after trial than those who were released pretrial.44 According to the study, one year of incarceration can result in “an irreparable lifetime wage depression of nine percent.”45
Story spotlight: Even if charges are dropped, cash bail can lead to lifelong debt
When someone is unable to afford their cash bail assignment, they often can secure release through a commercial bail company. In exchange for a premium fee, the company agrees to pay the court if the individual fails to appear.46 Commercial bail premiums are not returned even in the event of dropped charges or a verdict of not guilty.47
According to Human Rights Watch, F.R. was arrested on a domestic violence warrant in 2015. F.R.’s mother acted as a co-signer for his bail bond by paying $1,000 and financing the rest of his approximately $13,000 premium. Though charges against F.R. were never filed, he is still responsible for paying off the remainder of his premium.48
Commercial bail fees disproportionately affect people of color and low-income people. As a result, communities that have faced generations of intentional governmental disinvestment lose access to critical economic resources even if charges are dropped or no evidence of wrongdoing is found. For example:
- In five months of 2016, almost 200 people in a California jail paid commercial bail premiums at a total estimated cost of $400,000, even though the charges against them were dropped or never filed.49
- Between 2011 and 2015, people in Maryland whose District Court cases did not result in a guilty verdict nonetheless paid $75 million in nonrefundable premiums.50 This $75 million is more than twice the total premiums paid by people whose cases resulted in a conviction in a District Court.51
3. Cash bail disrupts current employment and creates barriers to future employment
When people are unable to afford cash bail and so remain incarcerated until their trial date, their ability to maintain employment is at risk. Moreover, many people who cannot afford to pay cash bail take plea deals to avoid staying in pretrial detention, regardless of their guilt or the strength of the case against them. As a result, many people who never had their day in court leave jail with a conviction and therefore new barriers to employment:
- A George Mason University study revealed that 84 percent of study participants suggested that they may lose their job as a result of incarceration, and at least 30 percent of participants employed prior to arrest actually did lose their job due to incarceration.52
- Employers are often reluctant to hire people with records,53 and licensure requirements can bar people from entire professions.54
- People who are incarcerated pretrial have a probability of formal employment that is 9.4 percentage points lower than that of people who are released.55
Story spotlight: Thanks to bail reform, a New Jersey man maintained employment while awaiting trial
According to an American Civil Liberties Union video, the main thought on T.H.’s mind after his arrest was: “I hope I don’t lose my job.” Fortunately for T.H., his arrest took place after his state of residence, New Jersey, implemented a bail reform law that eliminated cash bail in most cases. Had T.H. been arrested prior to the reform, he likely would have been given an unaffordable $100,000 cash bail assignment. T.H. believes that he would have spent more time incarcerated, and likely lost his job, if bail reform had not taken effect. Because it did, T.H. was able to keep his job as an automotive technician and continue to work toward his dream of owning his own auto shop.56
Employment programs serve as powerful examples of the positive public safety impacts associated with employment. When New York City implemented a summer youth employment program, it saw a 10 percent decrease in incarceration and an 18 percent decrease in mortality, mostly driven by a drop in homicides.57 A Chicago employment program saw even greater public safety benefits, as violent crime arrests decreased 43 percent in the 16 months following program implementation.58
4. Cash bail results in family separation and has adverse effects on children
The destabilization and harms that result from cash bail extend far beyond the arrested individual, negatively affecting family members, including children. In the most recent national study of jail populations, the 2002 Survey of Inmates in Local Jails, 53 percent of men and 66 percent of women who were incarcerated for an inability to pay bail were parents of minor children.59 Pretrial incarceration often separates parents and children for extended periods of time.60 One study found that 40 percent of incarcerated parents indicated that being in jail has or will change the living situation of their child or children.61 And children who have an incarcerated parent tend to experience higher rates of depression, anxiety, post-traumatic stress disorder, and suicidal ideation than children who do not have an incarcerated parent.62
Story spotlight: A single mother was separated from her children due to unaffordable cash bail
In 2021, J.L. was arrested and given a $60,000 bail assignment after, she told “Today,” she was accused of stealing while trying to retrieve the puppies her dog had delivered in a neighbor’s yard. She said that her five children, anxious for her to get out of jail and return home after a traumatic separation, tried to sell their games and possessions to afford her release.63 While cash bail often leads to family separation, reforms keep families together by ensuring that people charged with low-level crime, such as J.L., can stay with their families pretrial.
Family stability, connection to parents, and participation in shared family activities during key moments such as mealtime or bedtime can serve as protective factors against crime.64 Conversely, parental incarceration is a factor known to increase the likelihood of future crime among children.65 One study found that children with an incarcerated parent are six times more likely to be arrested than children whose parents are not incarcerated.66
5. Cash bail perpetuates cycles of homelessness and incarceration
Homelessness is inextricably linked to arrest rates, in large part due to the criminalization of related behaviors such as camping outside, public urination, and loitering.67 Access to stable housing increases the health and safety of recipients and promotes community safety through a decrease in arrests and contacts with police.68 Several recent evaluations of supportive housing programs have demonstrated a reduction in crime among participants.69 Indeed, access to housing has a number of public safety benefits:
- The safety and stability that housing provides allows people to address economic and health-related issues.70
- A 2021 study found that people experiencing homelessness who received housing assistance were 7.9 percent less likely to be charged with a crime in the following 18 months.71
- Participants in a Denver supportive housing program had eight fewer police interactions and four fewer arrests than people who received traditional community supports 72—a 34 percent and 40 percent reduction in police interactions and arrests, respectively.73
Yet current cash bail systems create new barriers to maintaining and obtaining housing upon release. Pretrial incarceration disconnects people from opportunities to earn an income or wages, and paying cash bail drains economic resources that could otherwise be spent on rent:
- A criminal conviction, which typically results from a guilty plea, can result in losing access or facing barriers to housing.74 In 2021, there were at least 1,326 barriers to housing for people with records; the barriers affect many housing types, including public, rental, temporary, and campus housing.75
- Nearly half of women who owe money to a commercial bail company face some form of housing insecurity.76
Story spotlight: A man’s plea deal resulted in his parents losing their public housing
According to a report from Human Rights Watch, C.G. stopped by a meeting for public housing tenants to give his father a set of keys. After C.G. argued with an officer who said the meeting was closed to the public, eyewitnesses say that several officers threw him to the ground and began beating him, cutting his lip and hurting his back. Ultimately, police arrested C.G. and incarcerated him for resisting arrest. Without the money to afford bail and fearing for his safety if he remained incarcerated, C.G. opted to take a plea deal for time served with additional conditions. A few months later, he learned his parents were being evicted from public housing due to his conviction.77
Conclusion
Although there is a concerted effort to paint cash bail reform as a danger to public safety, significant evidence demonstrates that the cash bail status quo threatens the personal safety of arrested people and their loved ones while creating conditions that are associated with higher rates of crime. Cash bail reform is a necessary step toward improving safety for all.