By Jaeok Kim, Quinn Hood, and Elliot Connors

Over the last decade, thousands of New Yorkers have been held in jail pretrial, largely because they could not afford to pay bail. In April 2019, New York legislators passed bail reform bills updating a set of laws that had remained largely untouched since 1971. The laws, which went into effect on January 1, 2020, made release before trial automatic for most people accused of misdemeanors and nonviolent felonies. In cases that remained eligible for bail—including violent felonies and some domestic violence- or sex-related charges—the law mandated that the judge consider a person’s ability to pay bail. However, an organized, immediate backlash by the opponents of bail reform led the New York legislature to amend the law in April 2020, only three months after the original reform went into effect. Meanwhile, in March 2020, New York became an epicenter of the COVID-19 pandemic. The pandemic changed the way the criminal legal system operated. Court hearings, including arraignments, became virtual. Jury trials were cancelled. And, understanding that jails could become COVID-19 hotspots and drive outbreaks outside of the jails, some court actors across the state began working to reduce jail populations. This report by the Vera Institute of Justice (Vera) is the first to examine the impact of April 2019’s bail reform in New York State by exploring trends in jail populations and admissions in New York City and a sample of counties

New York: Vera Institute of Justice, 2021. 44p.

By Brad Lander

The purpose of bail is to ensure that a person who is arrested returns to court for trial. However, in practice, the impact of bail has been to detain tens of thousands of New Yorkers, presumed innocent, before trial and cost low-income families tens of millions of dollars every year. To address these concerns, in April 2019 the New York State Legislature passed sweeping reforms to state bail laws. The guiding principle was that no one should be jailed because they are too poor to pay bail. The law prohibited bail-setting for most misdemeanor and non-violent felony charges, required judges to consider a person’s ability to pay before setting bail, and required that defendants have at least three options for making bail, including less onerous options. In the ramp-up to implementation of bail reform on January 1, 2020, the jail population dropped quickly, falling from about 7,100 on November 1, 2019 to 5,800 on January 1, 2020 and to 5,500 on February 1, 2020. When COVID-19 hit the city in March 2020, the jail population fell further, temporarily falling below 4,000 as arrests dropped and efforts were made to reduce the incarcerated population, including those at greater risk of severe illness, during the pandemic

New York: Office of the City Comptroller, Bureau of Budget and Bureau of Policy and Research 2022. 17p.

By Shamena Anwar Shawn Bushway, John Engberg

Roughly half of U.S. counties do not provide defense counsel at bail hearings, and few studies have documented the potential impacts of legal representation at this stage. This paper presents the results from a field experiment in Allegheny County, Pennsylvania, that provided a public defender at a defendant’s initial bail hearing. The presence of a public defender decreased the use of monetary bail and pretrial detention without increasing failure to appear rates at the preliminary hearing. The intervention did, however, result in a short-term increase in rearrests on theft charges, although a theft incident would have to be at least 8.5 times as costly as a day in detention for jurisdictions to find this tradeoff undesirable.

Sci. Adv. 9, eade3909 (2023) 5 May 2023

By Don Stemen and David Olson

Bail reform efforts across the United States have accelerated in recent years, driven by concerns about the overuse of monetary bail, the potentially disparate impact of pretrial detention on poor and minority defendants, and the effects of bail decisions on local jail populations. Proponents of bail reform advocate for reducing or eliminating the use of monetary bail, arguing that many defendants are held in jail pretrial solely because they cannot afford to post bail. Opponents counter that reducing the use of monetary bail or increasing the number of people released pretrial could result in more defendants failing to appear for court hearings (FTAs) or committing crimes while on pretrial release. Evaluations of recent bail reform efforts indicate that these efforts have not been associated with increases in new criminal activity….. A debate has played out in the media regarding the link between GO18.8A, the types of individuals released pretrial, and the number and percent of individuals charged with a new crime while on pretrial release. The debate centers around an evaluation of GO18.8A conducted by the Office of the Chief Judge (OCJ).5 The OCJ’s evaluation found that the number and percent of felony defendants released pretrial increased after GO18.8A but that the percent of felony defendants charged with a new crime while on pretrial release was similar before and after GO18.8A. Subsequent analyses by the media6 and academics7 suggested that the OCJ’s evaluation underestimated the percent of defendants charged with a new crime after GO18.8A. …. These critiques suggested that GO18.8A may have led to an increase in new criminal activity of those released pretrial and contributed directly to increases in crime in Chicago and Cook County. These subsequent analyses, however, also suffer from methodological problems similar to those in the OCJ’s evaluation. By relying on the same public data collected and distributed by the OCJ, these analyses were unable to correct for the critiques made of the OCJ’s analyses – namely a truncated follow-up period and a failure to account for seasonality – without making assumptions about, and estimations of, underlying recidivism rates of those released.8 More importantly, the analyses were unable to verify or refute the OCJ’s analyses of bond court decisions, release rates, or new criminal activity through the independent analysis of defendant- and charge-level court or jail data. As a result of these methodological shortcomings and contradictory findings, the actual impact of GO18.8A remains unclear. ….

Chicago: Loyola University Chicago, 2020. 34p

By Katherine Hood, Daniel Schneider

  Despite growing interest in bail and pretrial detention among both academic researchers and policymakers, systematic research on pretrial release remains limited. In this article, we examine bail and pretrial release practices across seventy-five large U.S. counties from 1990 to 2009 and look at the contextual correlates of bail regime severity. We find tremendous intra-county variation in bail practices, as well as a nationwide decline in the use of nonfinancial release and doubling of bail amounts during this period. This variation is not accounted for by differences in case composition across jurisdictions or over time. Patterns of bail practices are associated with political, socioeconomic, and demographic factors, however. Implications of these findings for future research on bail and pretrial detention are discussed.  

RSF: The Russell Sage Foundation Journal of the Social Sciences, Vol. 5, No. 1,  (February 2019), pp. 126-149

By  Joshua Page, Victoria Piehowski, Joe Soss

  Among the institutions that link criminal justice and inequality in the United States, commercial bail remains one of the most important yet least understood. Each year, the bail industry extracts millions of dollars from lower-income Americans, disproportionately draining resources from poor communities of color. We draw on ethnographic research to explore how the bail system operates as a predatory social process, arguing that gender interacts with class and race to structure resource extraction in this field. Poor women of color are especially subject to bail predation because they are seen within the larger social organization of care as bearing primary responsibility for defendants. Gendered care work and emotional labor are thus central to the field’s logic of practice and to bail industry profits.

RSF: The Russell Sage Foundation Journal of the Social Sciences 5(1): 150–72  

By Joshua Page and Christine S. Scott-Hayward

In this review of scholarship on bail and pretrial justice in the United States, we analyze how the field of bail operates (and why it operates as it does), focusing on its official and unofficial objectives, core assumptions and values, power dynamics, and technologies. The field, we argue, provides extensive opportunities for generating revenue and containing, controlling, and changing defendants and their families. In pursuit of these objectives, actors consistently generate harms that disproportionately affect low-income people of color and amplify social inequalities. We close with an analysis of political struggles over bail, including current and emerging possibilities for both reformist and radical change. In this, we urge scholars toward sustained engagement with people and organizations in criminalized communities, which pushes scholars to reconsider our preconceptions regarding safety, justice, and the potential for systemic change and opens up new avenues for research and public engagement.

   Annu. Rev. Criminol. 2022. 5:91–113

By Lauren Nickolls

This Library briefing paper provides an overview of police powers to release suspects from custody under investigation and on pre-charge bail. It also discusses the two major reforms that pre-charge bail has undergone in the last decade, first in 2017 and then in 2022.   When the police have arrested and detained a suspect but do not have the evidence to charge them, the suspect must be released. They can be released either on pre-charge bail (also known as police bail), “under investigation” (RUI) or with “no further action”.  

London: UK Parliament, House of Commons Library, 2023. 36p.

By Sandra G. Mayson 

ABSTRACT An unaffordable bail requirement has precisely the same effect as an order of pretrial detention: the accused person is jailed pending trial. It follows as a logical matter that an order requiring an unaffordable bail bond as a condition of release should be subject to the same substantive and procedural protections as an order denying bail altogether. Yet this has not been the practice. This Article lays out the logical and legal case for the proposition that an order that functionally imposes detention must be treated as an order of detention. It addresses counterarguments and complexities, including both empirical and normative ambiguity in the concept of “unaffordable” bail. It explains in practical terms what it would entail for a court system to treat unaffordable bail as a detention order. One hurdle is that both legal and policy standards for pretrial detention are currently in flux. Recognizing unaffordable bail as a detention order foregrounds the question of when pretrial detention is justified. This is the key question the bail reform movement must now confront.  

69 Duke L.J. 1643 (2020)  

By Don Stemen and David Olson

  In response to widely voiced criticism that monetary bail imposes an unfair burden on poor defendants, many of whom remain in jail because they are unable to acquire the money for bail, numerous jurisdictions—cities, counties, and states—have enacted changes in pretrial practices and policy intended to reduce or eliminate the use of bail. Although under long-established practices and policies most defendants required to post bail eventually do so, critics of these reforms contend that they endanger the public by allowing arrestees to remain at liberty while awaiting trial, leading to substantial increases in crime. To assess these arguments, we considered eleven bail-reform jurisdictions to determine the effect, if any, of these policy changes on crime. Violent crime trends after reforms present no clear or obvious pattern in these jurisdictions. In six places, violent crime decreased in the year after reforms. In all these instances, it decreased more than the national average did in that year, or it decreased while the national average increased. In four jurisdictions, violent crime increased while the national average decreased in the same year….

New York: Harry Frank Guggenheim Foundation , 2023. 23p.

By  Ilya Klauzner

A program designed to keep young people out of remand significantly reduces the likelihood of custody. However, its limited reach means very few young people receive this assistance. The NSW Bail Assistance Line is an after-hours helpline that assists young people who are likely to be remanded by police gain access to bail.  Young people can be connected with accommodation, transport and other support services to help them satisfy the conditions of a bail order. A new evaluation by the Bureau of Crime Statistics and Research considers the number of young people helped by this program and how placement impacts the likelihood of incarceration and reoffending. The study found that the number of young people receiving bail through the Bail Assistance Line is low.   In the first half of 2019, the Bail Assistance Line placed 51 young people; or 9.4% of the 542 cases that were bail denied by police or placed by the Bail Assistance Line.  While the number of placements is low, the number of bail placements through the service has in fact more than doubled over the 8 years from 2011. Young people helped by the Bail Assistance Line are more likely to be female, non-Aboriginal defendants with shorter criminal histories. Services are strongly concentrated in urban areas and Greater Sydney. While reach is low, the study found positive outcomes for those assisted.  In particular, in the six months after the bail decision, young people placed by the Bail Assistance Line were 16% less likely to be incarcerated. According to Jackie Fitzgerald, Executive Director at BOCSAR, “Expanding the Bail Assistance Line has the potential to increase the number of young people placed on bail. However, the impact depends on police engaging the Bail Assistance Line earlier in the bail process and police willingness to consider varying a young person’s bail determination.”

Sydney: NSW Bureau of Crime Statistics and Research, Crime and Justice Bulletin No. CJB237. 2021. 32p.

By Min-Taec Kim

The aim of this study is to estimate the causal impact of appearing via audio-visual link (AVL) on the likelihood of being granted bail. Audio-visual link describes the video conferencing equipment to facilitate court appearances without the defendant being physically present. To estimate the impact of appearing via AVL on bail outcomes, we compare individuals who have their first court bail hearing via AVL at two NSW Correctional Centres, Amber Laurel and Surry Hills, between Jan 2018 and Feb 2020 with similar individuals over the same period. The credibility of the estimates hinge on two factors:
1) The extent to which we have observed and modelled the factors that influence the bail decision of the magistrate, and 2) The extent to which the allocation of AVL is ‘as good as random’ after controlling for all observed factors. Three statistical approaches (logistic regression, Mixed effects regression and a generalised random forest) are used to adjust for the observed differences between these two groups and estimate the causal impact of appearing via AVL.

Sydney: NSW Bureau of Crime Statistics and Research (BOCSAR), Crime and Justice Bulletin No. CJB235. 2021. 40p.

By The  U.S. Commission on Civil Rights,  Kentucky Advisory Committee

The Kentucky Advisory Committee (“Committee”) to the U.S. Commission on Civil Rights examined the pretrial detention and bail process in Kentucky. The Committee’s work focused on the impacts and uses of cash bail—that is, the money an individual must pay to secure their release from detention pretrial—in the state. As part of the inquiry, the Committee heard testimony on this topic from a diverse group of panelists during public meetings. The use of cash bail is prevalent in Kentucky courts, posing significant challenges to low-income defendants. A study by the Pegasus Institute in 2016 found that over 64,000 nonviolent, nonsexual offenders—70 percent of whom were deemed to be at low to moderate risk for reoffending prior to trial—were detained in Kentucky for an average of 109 days pretrial because they could not afford to pay their bail.1 The Committee heard several key themes throughout their inquiry which evidenced the need for cash bail reform in the state to achieve more equitable and effective public safety outcomes. These key themes included (1) the failure of Kentucky’s pretrial risk assessment tool to reduce pretrial detentions and provide reliable risk assessments; (2) the widely varied conditions of release for similarly situated defendants across the state; and (3) the negative consequences caused by unnecessary pretrial detention of low- to moderate-risk nonviolent and nonsexual alleged offenders. ….

Washington DC: USCCR, 2021. 16p.

By David Arnold, Will Dobbie, and Peter Hull

 We develop new quasi-experimental tools to measure racial discrimination, due to either racial bias or statistical discrimination, in the context of bail decisions. We show that the omitted variables bias in observational release rate comparisons can be purged by using the quasi-random assignment of judges to estimate average race-specific misconduct risk. We find that approximately two-thirds of the average release rate disparity between white and Black defendants in New York City is due to racial discrimination. We then develop a hierarchical marginal treatment effects model to study the drivers of discrimination, finding evidence of both racial bias and statistical discrimination. Outcome-based tests of racial bias therefore omit an important source of racial discrimination in bail decisions, and cannot be used to rule out all possible violations of U.S. anti-discrimination law.   

Chicago: University of Chicago, Becker Friedman Institute for Economics, Working Paper, 2020. 83p.

By Sara Rahman

Aim: To estimate the effect of bail decisions on the likelihood of receiving a prison sentence, failure to appear and offending on bail. Method: A dataset of 42,362 first bail hearings taking place after the ‘show cause’ amendments to the Bail Act (2013) was constructed and linked to final case outcomes and offending data. Quasi-random assignment of bail magistrates with differing propensities to grant bail was used to address problems of selection bias and partial observability. Further analyses were undertaken to determine the proportion and characteristics of defendants who were sensitive to magistrate leniency. Robustness checks were conducted to determine the sensitivity of estimates to different specifications. Results: The marginal effect of additional releases is an increase in the rate of offending from 2.3 per cent to 13.3 per cent, a decrease in the rate of imprisonment from 59.0 to 49.0 per cent and an increase in the rate of failure to appear from 2.1 per cent to 11.1 per cent for those defendants. Thus, remanding ten additional defendants increases the number imprisoned by one, and reduces the number of offending and failing to appear by 1.1 and 0.9 on average. These estimates are causal and net of differences in observed characteristics and selection bias, but applicable only to a subset of defendants whose bail status is sensitive to magistrate leniency. The likelihood of failing to appear and of offending on bail for these defendants does not exceed the general rate among those released on bail. Conclusion: Taken together, the results show that bail refusal has a significant incapacitation effect on crime and failure to appear. These benefits should, however, be considered alongside the considerable cost to the correctional system and the individual arising from increased imprisonment rates. There is limited evidence for the influence of selection bias in regards to imprisonment but not in relation to crime or failure to appear.

Brisbane: NSW Bureau of Crime Statistics and Research , 2019. 24p.

By Sandra G. Mayson,. Lauren Sudeall, Guthrie Armstrong and Anthony Potts

This Article presents a mixed-methods study of misdemeanor bail practice across Georgia in the wake of reform. We observed bail hearings and interviewed system actors in a representative sample of fifty-five counties to assess the extent to which pretrial practice conforms to legal standards clarified in Senate Bill 407 and Walker v. Calhoun. We also analyzed jail population data published by county jails and by the Georgia Department of Community Affairs. We found that a handful of counties have made promising headway in adhering to law and best practices, but that the majority have some distance to go. Most counties assessed do not assure a bail hearing within forty-eight hours of arrest, provide counsel at the initial bail hearing, consistently evaluate arrestees’ financial circumstances, or guarantee release within forty-eight hours of arrest for those who cannot pay bail. In a combined eighteen counties, 37% of misdemeanor arrestees remained in jail for at least three days after arrest. In DeKalb County, 53% of all those arrested on misdemeanor charges between 2000 and 2019 were jailed for three days or more, but the annual rate has declined from 63% in 2009 to 26.5% in 2019.Per capita pretrial detention rates varied widely by county in 2019, with most of the higher rates in the southern portion of the state. Overall, the qualitative and quantitative data demonstrate both progress and substantial variation by county.

Philadelphia: Faculty Scholarship at Penn Law. 2020. 63p.

By the Criminal Justice Policy Program, Harvard Law School

Bail reform presents a historic challenge – and also an opportunity. Bail is historically a tool meant to allow courts to minimize the intrusion on a defendant’s liberty while helping to assure appearance at trial. It is one mechanism available to administer the pretrial process. Yet in courtrooms around the country, judges use the blunt instrument of secured money bail to ensure that certain defendants are detained prior to their trial. Money bail prevents many indigent defendants from leaving jail while their cases are pending. In many jurisdictions, this has led to an indefensible state of affairs: too many people jailed unnecessarily, with their economic status often defining pretrial outcomes. Money bail is often imposed arbitrarily and can result in unjustified inequalities. When pretrial detention depends on whether someone can afford to pay a cash bond, two otherwise similar pretrial defendants will face vastly different outcomes based merely on their wealth…. All of this builds on sustained attention from experts and advocacy groups who have long called for fundamental reform of cash bail.3 As policymakers across the political spectrum seek to end the era of mass incarceration,4 reforming pretrial administration has emerged as a critical way to slow down the flow of people into the criminal justice system. This primer on bail reform seeks to guide policymakers and advocates in identifying reforms and tailoring those reforms to their jurisdiction. In this introductory section, it outlines the basic legal architecture of pretrial decision-making, including constitutional principles that structure how bail may operate. Section II describes some of the critical safeguards that should be in place in jurisdictions that maintain a role for money bail. Where money bail is part of a jurisdiction’s pretrial system, it must be incorporated into a framework that seeks to minimize pretrial detention, ensures that people are not detained because they are too poor to afford a cash bond amount, allows for individualized pretrial determinations, and effectively regulates the commercial bail bond industry.

Cambridge, MA: Harvard Law School, 2016. 40p.

By the National Task Force on Fines, Fees, and Bail Practices

The purpose of this Guide is to provide state court leaders with detailed information on state bail reform efforts. This Guide presents case studies of six states’ recent experiences with bail and pretrial reform efforts: Arizona, California, Connecticut, Maryland, New Jersey, and Texas. These six states were selected to present a geographic and politically diverse sample, as well as a variety of approaches to reform. Key members involved in the reform efforts in each state were interviewed, including chief justices, appellate court justices, trial court judges, state court administrators, administrative offices of the courts staff, state legislators, state attorneys general, and executive-branch criminal-justice experts, among others

Fairfax, VA: The Task Force, 2020.78p.