Every summer, Americans celebrate their independence with fireworks and barbecues. Freedom, we’re told, is something we must never take for granted. Since our earliest days, we’ve been conditioned to view America as the “land of the free.” After all, liberty is central to our national identity, declared by our founding fathers as an inalienable right. As the age-old mantra goes: Freedom isn’t free.
Freedom certainly has a price, and thanks to the cash bail system, that price has become outrageously expensive. In a country that jails 2 million people in over 4,000 prisons, thousands of our citizens pay cash bail to secure their release before they even face conviction. For a nation founded on the principle of innocent until proven guilty, it seems that freedom is a lot more alienable than we thought.
Before we discuss cash bail, it’s important to consider the primary population it targets — the unconvicted. About 446,100 people in the U.S. jail system have not been convicted of a crime. The number increases for local jails: In midyear 2023, more than 70% of America’s jail population was unconvicted and awaiting trial. The jailing of unconvicted defendants is a significant part of the nation’s mass incarceration crisis, costing taxpayers over $182 billion annually.
Historically, mass incarceration has not impacted all Americans equally: racial inequality has played a significant role in the nation’s mass incarceration epidemic. One study found that Black Americans were more than three times more likely to have cash bail assigned to them than white defendants. Overall, Black defendants are 25% more likely to face incarceration before trial.
We must ask ourselves what role cash bail has played in this disparity. After all, in a country whose average Black citizen makes significantly less than their white counterpart, a pretrial system which assigns freedom or imprisonment on a purely financial basis does not begin from an equitable foundation. If we want to fight against mass incarceration and racial inequality, all while building a more efficient and effective justice system, the use of cash bail should be the first thing on the chopping block.
Since its introduction in the late 19th century, forty-seven U.S. states still rely on a cash bail system. The three exceptions — Illinois, New Jersey and New Mexico — passed legislation repealing the use of the practice entirely. In Illinois, for example, lawmakers passed the groundbreaking Pretrial Fairness Act. To determine pretrial release in Illinois, the act requires judges to weigh a defendant’s risk of recidivism and the severity of the crime, rather than their bank account.
But critics maintain that while cash bail may lead to inequality,it was designed as a way to encourage people to make their court appearances rather than skipping town. Across the country, however, alternate forms of bonds led to an 88% appearance rate — 7% higher than that of cash bail. When it comes to discouraging future crime, cash bail appears to have the opposite effect, with one study from Philadelphia showing that cash bail led to a 6-9% increase in recidivism rates.
The bottom line is that cash bail is not the most equitable method for deciding pretrial release. It perpetuates racial inequality and contributes to America’s prison crisis. The solution for the problems posed by cash bail lies in replicating the success of Illinois’ Pretrial Fairness Act across the country. Instead of keeping poor people in jail, the Pretrial Fairness Act establishes the bar for release solely based on the severity of the crime and risk of reoffending — a fairly reasonable concept, especially if you agree that prisons should deter crime and make people safer.
Still, it makes sense to ask how Illinois has fared since the bill became law. Many have argued that the bill would overwhelm the justice system and cause inefficiency. But rather than resulting in higher crime rates and fewer court appearances, the bill did exactly what it intended. Researchers at Loyola University found that although the bill led to an increase in pretrial releases, there was no noticeable increase in crime rates.
Abolishing cash bail is the first step to combating mass incarceration and structural inequality. America will still have a broken prison system, but eliminating cash bail can at least make it a slightly better one. By abolishing the practice, we can ensure more people in America finally know what it means to be free, regardless of their ability to pay for it.
Gunnar Hartman is an Opinion Columnist studying public policy and economics. His column, “Cash and Constitutions,” focuses on the rise of authoritarianism and the role of money in politics. He can be reached at hartmang@umich.edu.
