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What is cash bail and why is it so problematic?

Throughout the United States, incarceration seems like the default for dealing with, well, everything. In fact, incarceration is so ubiquitous in the U.S. that 50 percent of adults have at least one immediate family member who has been in jail or prison, according to a report from the group FWD.us. Last year, the Prison Policy Initiative (PPI), a non-partisan research group, reported that one in five prisoners in the world is incarcerated in the U.S. — despite the fact that the U.S. only accounts for less than 5 percent of the global population.

The horrors of carceral institutions are often dismissed by supporters who argue that, barring life sentences, prisoners get out eventually. Incarceration is framed as the appropriate atonement for being convicted of a crime.

Of course, it's not that simple. People can be held in jail without convictions, an issue that's exacerbated by the existence of cash bail. The prison reform movement has long been pushing to get rid of cash bail — and it just might be working. In February 2021, on the back of 2020's nationwide uprisings and various state-level criminal justice reforms, Illinois became the first state to outlaw cash bail. But what exactly is cash bail, and why is it so problematic? Here's what you should know.

What is cash bail?

Cash bail, or money bail, is the money paid to get someone out of jail after their initial arrest. The national median bail amount for felony charges is $10,000, though the cost varies widely depending on how it is set. Judges determine bail using factors like the charges (is it a felony? a misdemeanor?) and whether they think someone will flee before trial.

The purpose of bail is, at least theoretically, to ensure a person facing charges will return for their trial or hearing; after their court appearances are complete, they're supposed to get the money back. On the surface, cash bail may seem reasonable, but the reality is far less so. Essentially, cash bail is the concept of buying a person's freedom — and, like the prison system as a whole, it fosters extreme inequality.

What happens if you can't afford bail?

Not everyone has cash readily available to hand over for bail, even with the assurance of getting it back. If you can't afford your bail, you have two options, according to the Brennan Center. You can turn to a private bail bond company that will assume responsibility for your bail, while charging you a "bond premium" (usually 10 to 15 percent of the total bail amount) and securing collateral, like your house or car. If you don't appear in court and the bond company doesn't get its money back, they will take that collateral to make up for the lost funds.

If you don't want to go that route, your other option is to just wait it out — which can mean living behind bars while you await trial for anywhere from a couple months to several years. Currently, nearly half a million people are sitting in jails without convictions, and those in pretrial detention account for more than two-thirds of the overall prison population, according to the Prison Policy Initiative (PPI).

Taking this route can have severe consequences. There's the potential psychological trauma, such as in the case of Kalief Browder, who died by suicide after being held for three years on Rikers Island without trial. He was initially arrested on suspicion of stealing a backpack and never convicted, but his family couldn't afford to pay his $3,000 bail. Following his release, he told The New Yorker that his experience (including two years in solitary confinement) left him "mentally scarred."

Making matters worse, those who remain in pretrial detention are four times more likely to be sentenced to prison than those released prior to their trial. And, as nonprofit organization The Bail Project notes, being held in jail for a long period of time can lead people to take plea deals they may not otherwise accept, just so they can go home.

Why is cash bail so problematic?

Perhaps the most glaring issue with cash bail is that it criminalizes poverty. Under this system, for example, a poor person can be arrested for a nonviolent offense — such as drug possession or a traffic violation — and wait months (or longer) in jail because they can't afford bail. Or, as in Pedro Hernandez's case, they can be arrested after being wrongly accused of a crime and slapped with exorbitant bail. Hernandez, who was arrested for attempted murder while at court for a traffic summons, was imprisoned for one year at Rikers Island after his bail was set at $250,000. Ultimately, a human rights organization bailed him out, and the charges were dropped due to lack of evidence. As The Bail Project points out, people in situations like Hernandez's "suffer the harms of incarceration" despite the fact that the law presumes them innocent until proven guilty.

Meanwhile, people who can afford bail — like Kyle Rittenhouse, the teenager who was arrested and charged with murder for killing two Black Lives Matter protestors — can freely carry on with their lives while awaiting trial.

It's unrealistic to expect people to be able to scrap together hundreds — let alone thousands — of dollars to purchase their freedom when they're already poor to start. According to Bureau of Justice Statistics data reviewed by the PPI, people in jail had a median income of $15,109 (in 2015 dollars, adjusted for inflation from the reporting date) before being incarcerated — less than half of the median income for non-incarcerated people of similar ages.

In a country where race and class are heavily linked, cash bail is yet another way communities of color are targeted by the carceral system. Not only are people of color — particularly Black people — more likely than white people to get arrested in the first place, but according to data compiled by The Sentencing Project, Black and Latinx people also tend to get hit with higher bail amounts than white people and are more likely to be detained because they can't pay. After release, studies show people are more likely to be arrested again — even if their initial jail time was brief or didn't result in a conviction. It's easy to see how this can create a pattern of incarceration and poverty.

Another disturbing factor: The use of private bail companies provides yet another way for people to capitalize off others' detainment and inability to afford bail. According to Data for Progress, the U.S. is one of only two countries in the world that allows commercial bondsmen to profit off people's inability to pay for their own freedom.

What are the health impacts of cash bail?

The downsides of cash bail go well beyond money. According to The Commonwealth Fund, incarcerated people have a higher likelihood of chronic illness — like hypertension, asthma, arthritis, and cervical cancer — and mental health issues, in part because prison health care is often woefully inadequate. For Black prisoners, it's even worse; even prior to incarceration, Black people have disproportionately high rates of illness (thanks in part to issues such as medical and environmental racism). And then, it's all compounded after release when, as The Commonwealth Fund notes, people face more struggles like lack of housing and job opportunities as a result of having been in jail. Keeping people behind bars just because they can't pay bail only increases the likelihood of these outcomes.

The link between cash bail and poor health outcomes has come under renewed scrutiny during the COVID-19 pandemic, with advocates pointing out the dangers of keeping people in crowded indoor spaces. Early in the pandemic, California nixed cash bail for most low-level offenses to address this issue, but that move has not been taken up nationwide.

While Illinois is eliminating its cash bail program, there is a lot of work left to do to overturn the entire U.S. system. In the meantime, organizations like The Bail Project are working not only to advocate for incarcerated people and prison reform, but also to provide free bail assistance to low-income people who are legally presumed innocent. "The human toll of this crisis is catastrophic, levied almost exclusively on the poor, and disproportionately on communities of color," The Bail Project states on its website, later continuing, "If history has shown us anything it is that we cannot arrest and incarcerate our way out of systemic social problems."