by Larry Schwartztol, Executive Director of the Criminal Justice Policy Program at Harvard Law School
An arrest is typically the first step in the criminal process – a process designed to determine whether punishment is warranted. Yet in local jails around the country, people convicted of no crime remain detained as that process unfolds. Very often, that pretrial incarceration comes down to a simple, disheartening fact: the person arrested lacks the wealth to pay bail.
For many pretrial defendants, the stakes are incredibly high. Even a short period of detention is a serious infringement on liberty, a deprivation that is compounded by exposure to the overcrowding, violence, disease, lack of health care and harshness that characterizes many jails. Beyond these inherent hardships, even short jail stays can upend a person’s life by disrupting employment, housing, child custody and health care. Studies have shown that pretrial detention also impacts the outcomes of a person’s criminal case. Being held before trial, even for short periods, has been shown to increase the chance of conviction (including conviction by guilty pleas for people charged with low-level crimes and desperate to get out of jail), the severity of a sentence and the chances of being arrested again in the future. Unaffordable money bail exposes many people to these consequences by transforming their lack of wealth into jail time.
The system of money bail, however, is at a crossroads. It remains a dominant tool for administering the pretrial process around the country – a totally normalized and nearly ubiquitous practice. Yet the tide appears ready to turn. Media outlets from the New York Times to Last Week Tonight with Jon Oliver have shined a bright spotlight on the pathologies of money bail. A wave of civil rights lawsuits has challenged the operation of money bail around the country, from small jurisdictions in Alabama, Georgia and Missouri, to larger systems like Chicago, Houston, San Francisco and the state of Massachusetts. Policymakers are also leading the charge for reform. In Maryland, the state’s attorney general has propelled forward a proposed rule that that would add safeguards to prevent people from being jailed due to inability to afford bail. Voters in New Mexico approved a ballot measure in November designed to decrease wealth-based jailing. And the U.S. Justice Department has become a forceful voice for reform, through court filings emphasizing core constitutional principles and a recent Dear Colleagues letter that went to every state chief justice and state court administrator in the country.