By Julia Schwed ‘21, Editor-in-Chief

We all grow up learning that in the United States everyone is “innocent until proven guilty.” But what we are not taught is that every year hundreds of thousands of people are incarcerated before being convicted. Of the 2.3 million people incarcerated in the United States at the start of 2020, more than half a million of them were being held in jail without being convicted of a crime. These detainees are individuals who have been arrested and are awaiting trial, and thus are in jail despite being entitled to a presumption of innocence. Most of these individuals are in jail because of our system of cash bail, which punishes defendants for being poor.   

In most states, after a person is arrested, a court sets cash bail, which is an amount of money that the person must deposit with the court in order to be released while awaiting trial. In theory, this is supposed to ensure that the defendant returns for trial, as they forfeit the money if they do not appear for their trial. But, in reality it keeps many people in jail simply because they cannot afford to pay the amount of bail set by the court.

The cash bail system disproportionately impacts Black and Latino defendants. Black and Latino defendants are more likely to be assigned bail and, when assigned bail, have it assigned at higher levels. In Philadelphia and Miami, Black defendants are 3.6 percentage points more likely to be assigned bail, and it is set around $10,000 higher on average. In California, 48.9 percent of White defendants are released pretrial, compared to only 38 percent of Latinos and 34 percent of African Americans. Nationally, 36 percent of African American defendants and 44 percent of Latino defendants were detained pretrial due to an inability to post bail, compared to just 27 percent of White defendants.

It is obviously problematic that Black and Hispanic defendants are more likely to be incarcerated while awaiting trial. As the Center for American Progress notes, “Spending even a few days in jail can result in people losing their job, housing, and even custody of their children.” Additionally, pretrial detention increases the likelihood of being arrested again in the future. One tragic example of the impact of cash bail is the story of Kalief Browder, a Black 16-year-old who was arrested for allegedly stealing a backpack. Kalief’s bail was set for $3,000, which his family could not afford to pay. Kalief was held in a New York jail for three years while awaiting trial. After three years, the charges were dropped and Kalief was released. However, the trauma he suffered in jail led him to commit suicide. It didn’t only take his life—two years after his death, his mother died of a heart attack.   

Being incarcerated while awaiting trial also makes a defendant significantly more likely to be convicted and sentenced to time in jail. Defendants who are in jail are limited in their ability to work with their lawyers. In addition, according to the New York Times and Pennsylvania Capital-Star, defendants who are innocent, but cannot afford bail, are more likely to accept plea bargains. This results in a criminal record, which can affect their education and work opportunities, among other things. According to the Bureau of Justice Statistics, 78 percent of pretrial detainees are convicted whereas 60 percent of defendants released pretrial are convicted. A study that looked at Philadelphia and Miami-Dade County found that being detained pretrial increases one’s chance of being convicted by fourteen percentage points. In New York, another study found that pretrial detention increases the conviction rate for felony defendants by thirteen percentage points.

Not only are pretrial detainees more likely to be convicted, they are more likely to be sentenced to jail or prison once convicted and face longer sentences. In Harris County, Texas, defendants who were detained pretrial had sentences that on average were more than double the length of sentences for defendants who were released. In Kentucky jail, sentences for pretrial detainees are two to three-and-a-half times the length of sentences for those released. In Philadelphia, there is a 42 percent increase in sentence length for pretrial detainees.

Not only is the cash bail system discriminatory, it is ineffective. One recent study found that cash bail has a relatively minimal impact on ensuring that defendants appear in court. When Philadelphia began releasing more defendants without requiring them to post bail, defendants showed up in court at nearly the same rate as before. As one judge explained, “There is no evidence you need money to get people back to court. It’s irrational, ineffective, unsafe and profoundly unfair.”

While some institutions that are built on systemic racism may be hard to dismantle, cash bail is not one of them. There is no reason that cash bail should not be eliminated in all, or almost all, instances. In 2017, New Jersey largely eliminated cash bail, and instituted a system that grants all defendants, except those facing life in prison, with a “presumption of release.” This has resulted in a decrease in the jail population, fewer crimes and fewer arrests for low-level crimes.  

Cash bail is nothing more than a way to criminalize being poor and creates further obstacles to breaking the cycle of poverty. We should be proud to live in a state that has led the way to eliminate this unfair, harmful and discriminatory system. It’s high time that the rest of the country follows suit.