4 Takeaways From Civil Rights Commission’s Cash Bail Study

Pretrial detention in the United States has seen explosive growth since 1970, with disparities in race and gender, as well as noted negative effects to a massive population not yet convicted of a crime, according to a report released Thursday from the U.S. Commission on Civil Rights.

The 281-page report, which was produced by the commission’s Office of Civil Rights Evaluation, highlights various studies on the development of pretrial detention and the federal and state bail system over the decades, along with possible reforms to what is arguably a cyclical punishment that disproportionately affects the indigent.

In particular, the report found that between 1970 and 2015, the number of people detained at the pretrial stage increased 433% and represents a larger proportion of the total incarcerated population in that same time frame. The commission noted that 74% of individuals currently held in jail are unconvicted, and that since 2000, 95% of the growth in need for jail resources was from the increase in such detainees.

“We at the commission are pleased to share our views, informed by careful research and investigation as well as civil rights expertise, to help ensure that all Americans enjoy civil rights protections to which we are entitled,” Commission Chair Norma V. Cantu wrote in a letter to President Joe Biden.

The report included testimony from “members of state judiciaries, state and local law enforcement, public policy experts, bill reform advocates, civil rights and criminal justice scholars, and legal experts,” she noted.

Here, Law360 looks at four major takeaways from the report.

Unfair Financial Conditions

Part of the precipitous rise in pretrial populations is specifically because local jurisdictions impose more financial conditions for release, the report found. Monetary bail can result in detaining defendants who simply can’t afford to post bail, despite posing little danger to the public.

Lars Trautman

R Street Senior Fellow

Between 1990 and 2009, the use of financial conditions for release in the largest urban counties increased from 37% to 61%. This rise has also led to the growth of the for-profit bail industry, with the number of pretrial releases relying on such services increasing from 24% in 1990 to 49% in 2009.

The decision-making process behind setting cash bail is also fraught. Lars Trautman, a senior fellow at nonprofit policy research organization R Street, testified before the commission that bail hearings can be “rushed and reckless.”

“Studies have indicated that in some places, the typical bail hearing lasts only one to three minutes on average,” he said. “That is hardly enough time to assess an individual’s risk of flight or danger to the community, let alone their financial ability to pay whatever money bail may be assessed on their case.”

In Cook County, Illinois, for example, the average money bond was more than $70,000 in November 2016, despite the median household income being $54,648.

Stark Racial Disparities

Black and Latin inmates find themselves detained pretrial and imposed with financial conditions more often than any other demographic, the commission found in its research.

While data from the Bureau of Justice Statistics shows that, between 2005 and 2018, incarceration rates for Black and Latin inmates declined while white populations increased, research shows that Black and Latin communities “have higher rates of pretrial detention, are more likely to have financial conditions imposed and set at higher amounts, and lower rates of being released on recognizance bonds or other non-financial conditions compared to white defendants.”

Much of that comes down to bias during the pretrial release decision-making process, according to the report. A 2018 study found that Black defendants were often assigned far harsher monetary bail amounts than white defendants. The study also found that judges were more likely to perceive Black defendants as more “dangerous,” resulting in denied bail and further pretrial detention. However, white defendants who were granted pretrial release were around 22% more likely to be rearrested than Black defendants.

Negative Consequences of Detention

The harmful effects of being stuck in pretrial detention, even if eventually found not guilty, further contribute to a cyclical system of incarceration, the report said. Getting caught in pretrial detention can result in losing housing or parental rights, harsher sentences, increased recidivism and getting fired from one’s job.

Eumi Lee

Superior Court of Alameda County in California

Monetary bail payments become even more insurmountable if an individual loses their job — or is no longer attractive to the job market due to the stigma of arrest and mugshots. Research has found that pretrial detention can lower job prospects three to four years after a bail hearing, while pretrial release increased the probability of employment nearly 27% and income from formal jobs by 18%.

“Mugshots now present an acute problem in the digital age [and] nearly one out of every three American adults — 77.7 million people — has been arrested and, thus, could be impacted,” said Eumi Lee, a current judge for the Superior Court of Alameda County in California and former University of California, Hastings College of the Law professor, in the report. “Once these images are online, whether posted initially by mugshot companies or law enforcement, they live on in perpetuity. They serve as the digital scarlet letter of our times, permanently affecting the reputation of those who have paid their debt to society and even may have expunged their criminal record, those who were found innocent, and those who were never prosecuted.”

All of these conditions, along with the conditions of incarceration, increase the anxiety and depression felt by pretrial detainees compared to those released pretrial, the report found. This could further lead to defendants accepting plea bargains to secure release more quickly.

Remedies to the Issue

The commission noted some steps taken by state and local jurisdictions to address the concerns highlighted throughout the report. Those include the use of risk assessment tools, wider collection of demographic data, implementation of diversion programs, and implementing “compassionate release” policies.

At the federal level, several panelists suggested the Department of Justice expand mandatory release and Congress pass cash bail-free legislation. The Justice Department could also curb some of the abuses found in local jurisdictions. Others recommended more funding to the criminal justice system, including a re-examination of the Justice Department’s grant-making strategy.

–Editing by Emily Kokoll and Kelly Duncan.

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