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How Money Bail Supporters Keep Getting It Wrong

Across the country, pretrial reform measures have been shown to promote public safety, improve fairness, and uphold constitutional rights — undermining critics’ claims to the contrary.

New Jersey bail bondsman
Photo by Mel Evans/The Associated Press

In October, a groundbreaking investigation by the Houston Chronicle found that local bail bond companies in Harris County, Texas, were cutting deals with pretrial detainees, often taking below-standard payments or making payment plans, including for violent felonies. Advocates say the exposé is the latest data point to reveal that the money bail system is essentially broken, promoting discriminatory practices while also failing to prioritize community safety or ensure appearance at trial.

Under the money bail system, people accused of crimes have to pay the court to secure their release before trial. The purpose of money bail is to ensure the accused appear for their court dates, abide by certain conditions, and avoid rearrest. But this system favors the wealthy who can afford to buy their release, while disproportionately incarcerating low-income people of color who can’t afford to pay — despite not being convicted of any crime.

In Harris Country, money bail also puts neighborhoods in additional jeopardy. When bail bond companies make deals with people who are likely to reoffend during the pretrial period, it exposes communities to unnecessary danger.

“No one should be under the illusion that the consideration made by a bail bonds company is about public safety,” explained Micah Derry, bail reform campaign director for Arnold Ventures. “It’s entirely about being able to turn a profit.”

In fact, the Chronicle documented one instance in which a man out on cash bond robbed a woman at gunpoint because he needed cash to afford his bail payment plan.

The county government has responded by approving the creation of a bail transparency dashboard that will document information such as the amount set for bonds, the name of the bail bondsperson, and the amount actually paid.

“Bail for violent offenders has unfortunately become filled with mischaracterizations, and we need objective data to help people understand what’s actually happening,” said Commissioner Adrian Garcia, who previously served as Harris County sheriff. “Neighborhoods deserve a pretrial system that promotes community safety, ensures court appearances, and protects rights of victims as well as the accused — but all too often the bail bond industry puts profit first.”

No one should be under the illusion that the consideration made by a bail bonds company is about public safety. It’s entirely about being able to turn a profit.
Micah Derry bail reform campaign director for Arnold Ventures


In contrast to the problems of money bail in Harris County’s felony courts, recent successful bail reforms in the misdemeanor courts have prioritized public safety and equitable treatment. In Harris County, a 2017 bail reform required money-free release for most poor residents charged with misdemeanors, in recognition that money bail practices amounted to “wealth-based detention,” as one judge put it.

“We do not have to choose between protecting the constitutional rights of defendants and protecting public safety,” Harris County Judge Lina Hidalgo said, according to a Houston Chronicle report. “In fact, by reforming our broken bail system, we are taking a step toward rebuilding trust between our system of justice and the residents it serves.”

The reform has led to a host of positive outcomes for those involved with the criminal justice system and their communities. An analysis of data collected between 2015 and 2019 found a reduction in the number of misdemeanor filings and an overall decrease in the duration of pretrial detention, while repeat offending has also declined. The misdemeanor reform has also been accompanied by a “stunning” drop in the financial value of bonds set by the courts — and a corresponding decline in earnings for bail bond companies, one reason that they have been desperate to get more clients in felony courts.

These proven benefits haven’t stopped critics from fear-mongering about bail reform. A recent report by the Texas Center for Justice and Equity analyzed media in Harris County and found that local outlets tend to amplify opponents who share false narratives, exploit racial fears, and portray bail reform as a threat to public safety. That media trend has also played out nationally.

A 'Model of Justice' in New Jersey

Across the country, a growing number of states have passed similar policy changes in pretrial practices, even in the face of opposition. In 2017, New Jersey passed a major criminal justice reform bill that effectively did away with money bail. At the time, the move had critics predicting crime sprees. But a recent report from the state’s judiciary found unequivocal upsides, affirming what advocates have argued for.

New Jersey Lt. Gov. Kim Guadagno, right, and Iquan Small, 21, listen as Gov. Chris Christie addresses a joint session of the Legislature after he called for a Special Session to work on overhaul of New Jersey's bail system on July 31, 2014, in Trenton, N.J. Christie cited Iquan Small as an example of the problems people face with high bail for minor offenses. (Mel Evans/Associated Press)

In 2020, the number of people released who were charged with new crimes while awaiting trial remained low, the recidivism rate held steady at 13% (and under 1% for serious crimes), and the court appearance rate stayed at 90%. Meanwhile, the percentage of inmates held on bail of $2,500 or less dropped to 0.2%, or just 14 people, from over 1,500 under the money bail system in 2012.

“As data become more readily available, we can see the long-term benefits of the policy changes around pretrial reform and recognize that they far outweigh any disadvantages,” Derry said. “That is exactly what’s happening in New Jersey.”

Overall, bail reform in the state “has released from our prisons several thousand low income Black and brown inmates not convicted of any crime, making New Jersey a model of justice for the nation,” the Star-Ledger editorial board recently wrote. “Taxpayers will likely see a savings, too.”

Video

New Jersey Pretrial Reform

The pretrial justice system in America is broken. But the Criminal Justice Reform Act in New Jersey has taken important steps toward fixing it. The 2017 act replaced a cash-based bail system with a risk-based bail system. Here is how it works.

Bail Reform Critics Face Facts in New York

New York has also experienced high-profile fights over bail reform. In 2020, the state enacted sweeping restrictions on the use of money bail and pretrial detention. That change reduced the courts’ reliance on both practices and made supervised release available to more people accused of nonviolent felonies — and even some violent offenses, as well.

Experts say this is all for the better. “The use of pretrial detention can have negative impacts on individuals who are held, so we should use it as parsimoniously as possible,” said Aubrey Fox, executive director of the New York City Criminal Justice Agency, a nonprofit organization that provides pretrial services to courts and people charged with crimes.

Fox emphasized that New York City’s history of providing release without money, which predates the 2020 bail reform, made the present success possible. “There's a commitment to identifying people who are low-risk and allowing them to live in the community during their pretrial period,” Fox said. Launched in 2016, supervised release has diverted nearly 25,000 people from money bail and pretrial detention, providing individualized support to those released and contributing to historic declines in the city's jail population.

Despite these successes, though, critics in government and the media have blamed bail reform for the city’s recent spikes in gun violence. New York City Police Commissioner Dermot Shea has repeatedly claimed, without evidence, that people released without money bail are major threats to public safety.

But as evidence of bail reform’s benefits mounts, those claims have become less defensible. During a recent state hearing, Shea backtracked when asked whether any person released without bail had committed a shooting. A recent fact-check by CBS2 shows that fewer people accused of gun crimes have been released without money bail since bail reform took effect, according to a report from the Mayor’s Office of Criminal Justice.

Bipartisan Calls for Reform

These shifts in the political and media landscape have paved the way for more bipartisan efforts across the country to end wealth-based pretrial detention. In Michigan, progressive Democrats and conservative Republicans came together to introduce a major pretrial reform package that would reserve money bail only for serious offenses.

Derry also pointed to his home state of Ohio, where he helped gather bipartisan support from over 50 co-sponsors in the Ohio House and Senate this past May to introduce a bill that would overhaul the money bail system. “It’s incredibly uncommon in Ohio to have so many bipartisan co-sponsors on a piece of legislation,” he said.

These trends support a movement toward a new reality in America, one in which policymakers on both sides of the aisle see time-tested pretrial reforms as a means to public safety rather than an impediment.

“These aren't new ideas,” Derry said. “But the ability to build bipartisan support has certainly grown.”


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