Bail or Jail: Lawmakers in More Than Two Dozen States Are Changing the Rules on Bail
Williams, Richard, State Legislatures
Most of the people sitting in local jails have not been convicted of a crime. Instead, they're awaiting trial and can't afford bail.
In fact, 60 percent of jail inmates are awaiting disposition of their cases, not serving time for a conviction, according to the federal Bureau of Justice Statistics. Three-fourths of these people are accused of property, drug or other nonviolent offenses. Although many are not considered a danger to the public or a flight risk, locking them up contributes substantially to the $9 billion local governments spend every year on jails.
There's a high cost to defendants, too. The time they spend in jail can cost them their jobs, prevent them from supporting their families and keep them from dealing with matters that might help their case. Defendants out on bail who have a job, are connected with their families and aren't abusing drugs or alcohol are more likely to show up in court, according to experts in the field.
Bail is the basic right for most defendants to be released prior to trial. Conditions for bail are set by a judge to reasonably ensure public safety and the person's return to court. They can include posting the full bail amount, using property as collateral or signing a written agreement to appear, referred to as release on your own recognizance. Judges also can order nonfinancial conditions, such as drug testing.
In localities with a pretrial services program, defendants are subject to supervision while they await trial or disposition of their case.
In 2011, at least 28 states enacted 73 bills addressing bail policy. The bulk of these laws seek to improve the effectiveness of commercial bond and pretrial services programs.
"We need to do a better job of distinguishing people who are suitable for release," says Representative John Tilley (D) of Kentucky. "We don't want people sitting in jails only because they cannot afford their financial bail."
Tilley chairs the House Judiciary Committee and co-sponsored pretrial reforms there last year.
Improving Pretrial Services
In 2011, Kentucky lawmakers set out to improve their pretrial system by determining who would be best-suited for release. (Kentucky is one of only four states--the others are Illinois, Oregon and Wisconsin--without commercial bail.) They changed pretrial release by requiring risk assessments and improving pretrial supervision. The reforms emphasized alternatives to jail for defendants who are not dangerous or a flight risk, who have substance abuse or mental health needs, or who are unable to pay their bail fee.
Defendants now undergo a pretrial risk assessment that considers factors linked to pretrial appearance rates and successful reentry into the community, such as employment status, family ties and avoiding substance use. Those determined to be low or moderate risk to the public or alleged victims, and who are likely to appear for court, are released on their own recognizance. For some moderate-risk defendants, courts impose conditions, such as drug testing or GPS monitoring.
Defendants who remain in jail before trial because they can't pay bail receive a $100 credit toward their bond every day, allowing them to earn their release over time. High-risk offenders who must pay a bond to get out are not eligible.
The Kentucky law improves the supervision of those on probation, parole and in pretrial programs, and reinvests the savings from housing fewer inmates to community programs that supervise both defendants and convicted offenders. The law also requires better record keeping of appearance rates and new crimes by pretrial defendants.
"The end goal is clear," says Kentucky Senator Tom Jensen (R), referring to the state's package of recent reforms. "We want more cost-effective ways to hold offenders accountable while improving public safety. …