By Color Of Change and ACLU’s Campaign for Smart Justice

Every year in the United States, millions of people are forced to pay cash bail after their arrest or face incarceration before trial. This is despite the fact that they are presumed innocent and have not been convicted of a crime. To avoid being locked up while their cases go through the courts—which can sometimes take months or even years—people who cannot afford bail must pay a non-refundable fee to a for-profit bail bonds company to front the required bail amount. The financial burden of this fee harms individuals, it harms families, and it disproportionately affects Black and low-income communities. The only winner is the bottom line of big for-profit businesses. These harms are perpetuated by the large insurance corporations that control the two-billion dollar for-profit bail bonds industry, which is both unaccountable to the justice system and unnecessary to justice itself. Large companies whose only goal is profit should not be the gatekeepers of pretrial detention and release. The for-profit bail system in the United States fuels mass incarceration and contributes to racial and economic inequalities. It is a destructive force that undermines the rights of people who come into contact with the criminal justice system, and it must be abolished.

New York: American Civil Liberties Union, 2017. 64o,

By Christopher T. Lowenkamp, Marie VanNostrand and Alexander Holsinger,

Each time a person is arrested and accused of a crime, a decision must be made as to whether the accused person, known as the defendant, will be detained in jail awaiting trial or will be released back into the community. But pretrial detention is not simply an either-or proposition; many defendants are held for a number of days before being released at some point before their trial. The release-and-detention decision takes into account a number of different concerns, including protecting the community, the need for defendants to appear in court, and upholding the legal and constitutional rights afforded to accused persons awaiting trial. It carries enormous consequences not only for the defendant but also for the safety of the community" (p. 3). This study examines the relationship between pretrial detention and sentencing. Sections following an executive summary include: introduction; sample description; and findings for eight research questions regarding the relations between pretrial detention and sentencing. Defendants who are detained for the entire pretrial period are three times more likely to be sentenced to jail or prison and to receive longer jail and prison sentences.

Houston, TX: Laura and John Arnold Foundation, 2013. 21p.

By Christopher T. Lowenkamp, Marie VanNostrand and Alexander Holsinger

The release-and-detention decision takes into account a number of different concerns, including protecting the community, the need for defendants to appear in court, and upholding the legal and constitutional rights afforded to accused persons awaiting trial. It carries enormous consequences not only for the defendant but also for the safety of the community … Using data from the Commonwealth of Kentucky, this research investigates the impact of pretrial detention on 1) pretrial outcomes (failure to appear and arrest for new criminal activity); and 2) post-disposition recidivism" (p. 3). Sections following an executive summary include: introduction; sample description; research objective one—investigate the relationship between length of pretrial detention and pretrial outcome; and research objective two—investigate the relationship between pretrial detention, as well as the length of pretrial detention, and new criminal activity post-disposition (NCA-PD). There appears to a direct link between how long low- and moderate-risk defendants are in pretrial detention and the chances that they will commit new crimes.

Houston, TX: The Laura and John Arnold Foundation, 2013. 32p.

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 Sandra G. Mayson

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.

Philadelphia: University of Pennsylvania School of Law, 2020. 39p.

By Paul Heaton

This research summary reports results from an analysis of the effects of misdemeanor bail reform, focusing on a natural experiment in Harris County, Texas that abruptly increased pretrial release rates.

Philadelphia: Quattrone Center for the Fair Administration of Justice, 2022. 51p.

By Angela Zhou, Andrew Koo, Nathan Kallus, Ren´e Ropac , Richard Peterson , Stephen Koppel‖, and Tiffany Bergin

We conduct an empirical evaluation of the impact of New York’s bail reform on crime. New York State’s Bail Elimination Act went into effect on January 1, 2020, eliminating money bail and pretrial detention for nearly all misdemeanor and nonviolent felony defendants. Our analysis of effects on aggregate crime rates after the reform informs the understanding of bail reform and general deterrence. We conduct a synthetic control analysis for a comparative case study of impact of bail reform. We focus on synthetic control analysis of post-intervention changes in crime for assault, theft, burglary, robbery, and drug crimes, constructing a dataset from publicly reported crime data of 27 large municipalities. Our findings, including placebo checks and other robustness checks, show that for assault, theft, and drug crimes, there is no significant impact of bail reform on crime; for burglary and robbery, we similarly have null findings but the synthetic control is also more variable so these are deemed less conclusive.

Unpublished paper, 2021. 64p.

By Allie Preston and Rachael Eisenberg

On any given day in 2022, 658,000 people are incarcerated in jails across the country, more than 80 percent of whom are awaiting trial to determine if they will be convicted of a crime. Although courts have determined that most people can safely await their trial while remaining in their communities, the inability to afford the cost of cash bail prevents thousands of people from accessing pretrial release. The pretrial process that is supposed to protect community safety and ensure access to justice has been corrupted by the corporate influence of the commercial bail industry. A small group of large insurance corporations oversees a web of private companies that make an estimated profit of $2.4 billion each year.2 Forprofit bail companies get rich by foisting nonrefundable costs onto the very people who can least afford the cost of bail, most often people experiencing poverty and people of color. These costs are owed even if the charges are dropped or the person is found not guilty at trial. The commercial bail industry actively defends cash bail systems that produce racially3 and economically unjust outcomes,4 high rates of pretrial incarceration,5 significant costs to taxpayers,6 and negative public safety consequences.7 The commercial bail industry traps people who cannot afford cash bail premiums in a predatory cycle of debt and incarceration, in the same way that payday loan companies and other predatory lenders make a profit by taking advantage of people who need help affording the necessities of daily life.8 Moreover, commercial bail companies operate with little oversight or accountability, frequently engaging in abusive and unethical practices that jeopardize public trust and undermine the legal system’s ability to administer justice.

Washington, DC: American Progress, 2022. 36p.

By Trevor J. Saunders

This book assesses Plato's penal code within the tradition of Greek penology. Saunders provides a detailed exposition of the emergence of the concept of publicly controlled, rationally calculated, and socially directed punishment in the period between Homer and Plato. He outlines the serious debate that ensued in the fifth century over the opposition by philosophers to popular judicial assumptions, and shows how the philosophical arguments gradually gained ground. He demonstrates that Plato advanced the most radical of the philosophical formulations of the concept of punishment in his Laws, arguing that punishment is or should be utilitarian and strictly reformative. This first comprehensive and detailed study of Plato's penology gives deserved attention to the works of a most important political and legal thinker.

Oxford, UK; New York: Clarendon Press/Oxford, 1991. 438p.

By The United States Sentencing Commission

This report focuses on offenders sentenced under the production of child pornography guideline. A companion report, Federal Sentencing of Child Pornography: Non-Production Offenses (June 2021), analyzes offenders sentenced under the nonproduction of child pornography guideline.

Washington, DC; United States Sentencing Commission, 2021. 72p.

By Kathleen C. Grilli, Kevin T. Maass and Charles S. Ray

This publication summarizes the history of Chapter Eight’s development and discusses the two substantive changes made to the elements of an effective compliance and ethics program. It then provides policymakers and researchers a snapshot of corporate sentencing over the last 30 years. Finally, the publication describes Chapter Eight’s impact beyond federal sentencing.

Washington, DC; The United States Sentencing Commission, 2022. 94p.

By Michael Rempel

This research brief summarizes what we know about New York City’s jail population since the COVID-19 outbreak. The data point to a 30 percent reduction in the city’s daily jail population from March 18 to April 29—attributable to urgent efforts to gain people’s release as well as to declining arrests, as people sheltered indoors at the start of the pandemic. Since then, the use of jail re-increased, reversing over half of the prior reductions. If the current trend continues, the jail population will return to its pre-COVID-19 level by mid-February 2021. The COVID-19 era has also seen considerable variations in the jail trends applicable to different subgroups, with the numbers held in pretrial detention progressively rising, even as incarceration has remained low among people convicted and serving sentences of one year or less. After reviewing key emergency release strategies adopted at the outset of the pandemic, this research brief documents overall jail trends and more specific changes in the composition of the jail population from mid-March to the beginning of November 2020.

New York: Center for Court Innovation, 2020. 22p.

ByTodd D. Minton, Zhen Zeng and Laura M. Maruschak

From March to June 2020, about 208,500 inmates received expedited release in response to COVID-19. „ During the pandemic, jail facilities became less crowded, as indicated by the decrease in occupied bed space from 81% at midyear 2019 to 60% at midyear 2020. „ The number of inmates held for a misdemeanor declined about 45% since midyear 2019, outpacing the decline in the number of inmates held for a felony (down 18%). „ The percentage of inmates held for a felony increased from 70% at midyear 2019 to 77% at midyear 2020. „ From March to June 2020, jails conducted 215,360 inmate COVID-19 tests. More than 11% of these tests were positive. „ Jails in counties with confirmed residential COVID-19 infection rates of 1% or more tested nearly 21% of persons admitted to their jails from March to June 2020. „ From March to June 2020, nearly 5% (10,850) of all local jail staff (233,220) tested positive for COVID-19.

Washington, DC: U.S. Department of Justice, Office of Justice Programs ,Bureau of Justice Statistics, 2021. 28p.

By Kyla Wasserman, Johanna Walter, Beata Luczywek, Hannah Wagner, and Cindy Redcross

This report presents findings from a feasibility evaluation of the Bridges to Pathways (Bridges) program. Bridges was a program for young men in Chicago between the ages of 17 and 21 years who were involved with the criminal or juvenile justice system and lacked a high school credential. The program offered intensive mentoring and case management, as well as the opportunity to earn a high school credential, attend social-emotional learning workshops, and participate in a subsidized internship.

The Bridges evaluation enrolled 480 young people between June 2015 and July 2016. This report provides a detailed description of the Bridges model and how the program providers adapted the model. It also presents findings about whether the program improved young people’s outcomes and decreased criminal activity during the first year after study enrollment. The implementation study concluded that the program succeeded in enrolling a high-risk population, and it focused its services on keeping participants engaged with the program and removing barriers to their participation.

New York: MDRC, 2019. 114p.

By Chloe Anderson Golub, Cindy Redcross and Erin Jacobs Valentine

On January 1, 2017, the State of New Jersey implemented Criminal Justice Reform (CJR), a sweeping set of changes to its pretrial justice system. With CJR, the state shifted from a system that relied heavily on monetary bail to a system based on defendants’ risks of failing to appear for court dates and of being charged with new crimes before their cases were resolved. These risks are assessed using the Public Safety Assessment (PSA), a pretrial risk-assessment tool developed by Arnold Ventures with a team of experts. The PSA uses nine factors from an individual’s criminal history to produce two risk scores: one representing the likelihood of a new crime being committed, and another representing the likelihood of a failure to appear for future court hearings.

The PSA is used at two points in New Jersey’s pretrial process: (1) at the time of arrest, when a police officer must decide whether to seek a complaint-warrant (which will mean booking the person into jail) or issue a complaint-summons (in which case the defendant is given a date to appear in court and released); and (2) at the time of the first court appearance, when judges set release conditions for defendants who were booked into jail on complaint-warrants. (The DMF is also used at this second point.) CJR includes a number of other important components: It all but eliminated the use of monetary bail as a release condition, established the possibility of pretrial detention without bail, established a pretrial monitoring program, and instituted speedy-trial laws that impose time limits for case processing.

This report is one of a planned series on the impacts of New Jersey’s CJR. It describes the effects of the reforms on short-term outcomes, including the number of arrest events (where an “arrest event” is defined as all complaints and charges associated with a person on a given arrest date), complaint charging decisions, release conditions, and initial jail bookings.

New York: MDRC, 2019, 48p.

By Cindy Redcross and Brit Henderson with Luke Miratrix Erin Valentine

Arnold Ventures’ Public Safety Assessment (PSA) is a pretrial risk assessment tool that uses nine factors from a defendant’s history to produce two risk scores: one representing the likelihood of a new crime being committed and another representing the likelihood of a failure to appear for future court hearings. The PSA also notes if there is an elevated risk of a violent crime.

Over 40 jurisdictions across the country have implemented the PSA. Mecklenburg County, North Carolina was one of the first; it began using the PSA in 2014, switching from another risk assessment. This study presents the effects of the PSA and related policy changes in Mecklenburg County. The first report in the series describes the effects of the overall policy reforms on important outcomes. A supplemental second report describes the role of risk-based decision making in the outcomes and describes the effects of the PSA on racial disparities in outcomes and among different subgroups.

Overall, the findings are notable from a public-safety perspective: Mecklenburg County released more defendants and did not see an increase in missed court appointments or new criminal charges while defendants were waiting for their cases to be resolved.

New York: MDRC, 2019. 42p.

By Melanie Skemer, Cindy Redcross, Howard Bloom

On any given day in the United States, nearly half a million people are detained in jail while awaiting the resolution of their criminal cases, many because they cannot afford to pay bail. Bail is meant to ensure that defendants appear for court dates and are not arrested for new charges while they wait for their cases to be resolved. However, research has shown that setting bail as a condition of release can lead to unequal treatment and worse outcomes for defendants who do not have the ability to pay, regardless of the risk they pose. Additionally, systemic racial inequities throughout the criminal justice system mean that communities of color are disproportionately affected by cash bail and pretrial detention.

In 2016, New York City rolled out a citywide program known as Supervised Release (SR). SR offers judges the option of releasing defendants under supervision in lieu of setting bail. Defendants released to SR are required to report to program staff members regularly and are offered reminders of their court dates, case management support services, and voluntary connections to social services. The city developed the SR program to reduce the number of defendants detained in jail because they could not afford to pay bail, while at the same time maintaining court appearance rates and public safety. The findings presented in this report offer strong evidence that SR achieved these overarching goals.

New York: MDRC, 2020.185p.

By Andrea Woods and Portia Allen-Kyle

Every year, millions of people are arrested, required to pay money bail they cannot afford, separated from their families and loved ones, or absent from their jobs--subjected to long periods of incarceration based on the mere accusation of a crime. This all occurs while people are presumed innocent under the law. Black and brown people, their loved ones, and those without the economic resources to thrive suffer the worst harms. The money bail system is in dire need of an overhaul.

New York: American Civil Liberties Union, 2019. 15p.

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.