Bail is a guarantee (usually in the form of money or property as collateral) required by a judge, magistrate, or bail commissioner as a condition of release from pretrial detention to ensure that a person accused of a crime will return to court to answer the charges against them. If the person is unable to post the bail set, they will be incarcerated until their case comes to trial, or is resolved by a plea or dismissal, in some cases a period of months or years. The U.S. Constitution guarantees that any bail set shall be “reasonable,” and should not result in pretrial detention simply due to inability to pay. However, most jurisdictions do not conduct evaluations to determine whether bails set by judges are “reasonable” for any given individual.

Many factors contribute to unequal bail outcomes for Black people including: judicial bias, where judges believe racial stereotypes that Black people are more dangerous; to centuries of economic discrimination and hardship that make it less likely for Black people be able to afford bail; to prosecutors trumping up charges for Black people.

Judges are 2.4 times more likely to detain Black people than white people who face the same charges. And when judges do set bail, on average it is $7,281 higher for Black people than white people for the same charges. Additionally, Black and Latinx people are twice as likely as white people to remain in jail because they cannot afford to pay their bail. 

The burden of posting bail and paying exorbitant fees to bail bonds agencies falls on individuals already struggling to survive.

Low- and no-income people who are arrested spend an average of 23 days in a cage before their day in court, simply because they often cannot afford to pay bail.

For instance, according to a 2010 Human Rights Watch report, bail was set at $1,000 or less in 72.3% of misdemeanor cases in New York. Many defendants still could not post bail, and were incarcerated pretrial as a result. For homeless, no- or low-income people, disabled people, migrants, and people who live paycheck to paycheck, even low bails can pose insurmountable obstacles to release. Even a short stint in jail can have devastating financial and other consequences, including losing a job, shelter bed, home, or having children taken away, regardless of whether a person is ultimately convicted.

Women bear a disproportionate burden of paying bail for themselves and their family members and loved ones, often sacrificing food and other basic needs, education, and working multiple jobs in order to cover the costs.

• A national community-based survey found that in 63% of cases, family members on the outside were primarily responsible for court-related costs associated with conviction. Of the family members primarily responsible for these costs, 83% were women.
• According to the same survey, 35% of women who have paid bail or court fees or missed economic opportunities due to incarceration (their own or that of a loved one) have faced homelessness, eviction, or the inability to pay rent or a mortgage as a result. Fifty percent (50%) of women who have owed money to a bail bond agency have faced housing insecurity as a result.

Migrants, who may be unable to access employment in formal economies, are subject to higher bonds in immigration proceedings, averaging $8000–$10,000.

In most cases, migrants are required to pay cash up front instead of being able to pay 10% to a bail bond agency in the same way defendants can in criminal proceedings, and only U.S. citizens or lawful permanent residents can post it. Migrants often face significant obstacles to retrieving the funds at the conclusion of their cases: ICE is currently holding over $200 million in bonds posted by migrants, a $57.3 million increase between September 2014 and July 2018. Additionally, migrants may successfully post bond in a criminal case only to be taken into custody for an immigration proceeding and lose the bond posted in the criminal case.

Bail is unnecessary to achieve its stated purpose—to ensure that people return to court to answer charges against them. Study after study shows that most people come back to court whether they pay bail, are released on their own recognizance, or are released with conditions. For example, in Santa Clara County, California, more than 95% of defendants returned to court when they were released on their own recognizance, and in Washington, DC, at least 87% of defendants released pretrial, without bail, make their court dates. Studies show that easily implemented practices such as text reminders and transportation and childcare support dramatically increase the chances that people will be able to return to court.

Bail can also be denied and pretrial detention mandated on the grounds that a person presents a danger to the community. Pretrial detention decisions, including those based on “risk assessment tools” (RATs) and algorithms rely on data that is based on – and reinforces – existing racial and economic disparities in policing, employment, and housing. As a result, use of RATs has discriminatory impacts: Black people accused of a crime are 44% more likely to be denied bail and incarcerated in jail pretrial than white defendants under similar legal circumstances.

Black migrants, homeless and low-income, disabled, and LGBTQ people are particularly likely to be subject to pre-trial detention because they experience high levels of police contact and arrest, structural exclusion from housing and employment, and may be less likely to be able to demonstrate family and community ties. People with mental disabilities and unmet mental health needs are often detained on the grounds that they pose a danger to themselves—even though a jail cell is literally the worst place to be when experiencing a mental health crisis. Disabled people experience high levels of violence and abuse and medical neglect in jails, including torturous use of chemical and physical restraints, physical and sexual violence, and extended solitary confinement, all of which only aggravate conditions that led to contact with the criminal punishment system.

Since the Vision for Black Lives was first released in 2015, many jurisdictions across the country have embarked on bail reform. However, most “reforms” only further entrench the current racist and classist system. Reforms that include risk assessment tools fall short of our demands to drastically decrease the number of people held pretrial and to eliminate racial disparities in the pretrial system. Additionally, even when people are released pretrial, many jurisdictions continue to impose controlling, coercive, costly and often impossible pretrial conditions, including electronic shackling, which simply make people’s homes into jails at their own expense. Still other reforms create for profit pretrial services, where the same companies that have made billions off of the caging of Black people are now administering drug tests and other mandated “services” paid for by people charged with crimes, who are then often forced to choose between supporting their families and paying their pretrial bills.

Fees and Fines