Why We Need Pretrial Reform

Why Are People in Jail Before Trial?

Most arrested people who are in jail before trial are there because of money bail.

Raising $400 for an emergency would be hard for nearly half of all Americans. Yet, across the United States a person’s ability to pay determines who stays in jail before trial and who returns home.1

Many detained people are accused of low-level, nonviolent offenses. Three out of four criminal cases in state trial courts are for misdemeanors that, if proved, would result in fines and/or less than a year in jail.2

Often, “bond schedules” set arbitrary bail amounts that are unaffordable to many. In one California study, local bond schedule amounts for public intoxication ranged from $75 to $10,000.3

Who Is Locked Up Before Trial?

Six out of 10 people in U.S. jails—nearly a half million individuals on any given day—are awaiting trial. People who have not been found guilty of the charges against them account for 95% of all jail population growth between 2000-2014. 4

In many of these cases, incarceration serves no legitimate purpose—and its overuse diminishes the presumption of innocence: By law, pretrial detention may be ordered only if an arrested person presents an unmanageable risk to public safety or is unlikely to appear in court.5

Extensive research shows black and Latino people are more likely to be detained than white people with similar charges and histories. Studies have found, for example, that African Americans face higher bail amounts and are less likely to be released on conditions that don’t involve paying money. Another concluded that being black increases a defendant’s odds of being held in jail pretrial by 25%.6

Many people in jail have behavioral health needs that would be better met outside the justice system. One in five jail inmates has a serious mental illness. Only 11% of people with substance-use disorders in the justice system receive any type of treatment.7

What Are the Costs?

Together, local communities spend at least $14 billion every year to detain people who have not been convicted of the charges against them.8

While in jail, people risk losing their jobs, falling behind in school, not getting needed medication, and losing housing and custody of their children.

Since just three days in jail makes some people more likely to be arrested on new charges, the current system makes communities less safe.9

Money-based systems release nearly half of the most dangerous defendants with little to no meaningful supervision.10

How Unequal Is Current Practice?

Bail amounts are higher for people of color.

Compared to white men charged with the same crime and with the same criminal histories, African-American men receive bail amounts 35% higher; for Hispanic men, bail is 19% higher than white men.11

People who cannot afford bond receive harsher case outcomes. They are three to four times more likely to receive a sentence to jail or prison, and their sentences are two to three times longer.12

Although most women in jail are charged with nonviolent crimes, women are less likely to be able to afford money bond. A study found that women in jail before trial earned scarcely more per year than the average bond amount of $10,000.13

1. Report on the Economic Well-Being of U.S. Households in 2015, Board of Governors of the Federal Reserve System (May 2016).

2. R. Schauffler, R. LaFountain, S. Strickland, K. Holt, & K. Genthon, Examining the Work of State Courts: An Overview of 2015 State Court Caseloads, National Center for State Courts (2016).

3. Matt Krupnick, Bail roulette: how the same minor crime can cost $250 or $10,000, The Guardian, 9/20/17.

4. Zhen Zeng, Jail Inmates in 2016 (NCJ 251210), Bureau of Justice Statistics (February 2018).

5. Jones, Cynthia, ""Give Us Free": Addressing Racial Disparities in Bail Determinations" (2013). Articles in Law Reviews & Other Academic Journals. Paper 301.

6. Jonah B. Gelbach and Shawn D. Bushway, Testing for Racial Discrimination in Bail Setting Using Nonparametric Estimation of a Parametric Model (August 20, 2011).

7. Traci Schlesinger, Racial and Ethnic Disparity in Pretrial Criminal Processing, Justice Quarterly (February 2007).

8. Bernadette Rabuy, Pretrial detention costs $13.6 billion each year, Prison Policy Institute (February 7, 2017).

9. Christopher T. Lowenkamp, Marie VanNostrand and Alexander Holsinger, Hidden Costs of Pretrial Detention, Laura and John Arnold Foundation (November 2013).

10. Developing A National Model For Pretrial Risk Assessment, Research Summary, Laura and John Arnold Foundation (November 2013).

11. Jonah B. Gelbach and Shawn D. Bushway, Testing for Racial Discrimination in Bail Setting Using Nonparametric Estimation of a Parametric Model (August 20, 2011).

12. Christopher T. Lowenkamp, Marie VanNostrand and Alexander Holsinger, Investigating the Impact of Pretrial Detention on Sentencing Outcomes, Laura and John Arnold Foundation (November 2013).

13. Bernadette Rabuy and Daniel Kopf, Detaining the Poor: How money bail perpetuates an endless cycle of poverty and jail time, Prison Policy Initiative (May 10, 2016).