Equal Opportunity For All
End Mass Incarceration
Policy Library

Reduce the Jail Population by Ending the Practice of Cash Bail

Some people accused of crimes are held without bail—for others, the court okays releasing them until trial, but cash bail keeps them locked up anyway. Every day, this impacts thousands and thousands of Americans accused of low-level offenses being held behind bars without having been convicted of a crime, simply because they cannot afford to pay. This costs taxpayers hundreds of millions of dollars a year in jail costs. Ending cash bail can stop this ineffective, unfair and costly practice while, keeping communities safe and increasing justice.

The National Landscape

Passed in:

Alaska, California, Connecticut, D.C., New Jersey, New Mexico, New York

Introduced in:

Illinois, Nevada

In The News

“Alaska’s decision to end the reliance on money bail came at a time of widespread concern in the state about its skyrocketing incarcerated population and the subsequent costs…. With the new reforms in place, [the PEW Charitable Trust] estimates that the number of inmates will decrease by 13 percent and that the state will save $380 million.”
CBS News
Re-making Bail
“Kundel was arrested, and his bail was set at $150,000. Not only did he have two dogs to take care of; he was the only caregiver for his ailing grandmother. So, he turned to a bail bondsman to cover the 10% of his bond. It cost him $15,000. "I still owe $8,500," he said. He pays it back in installments, which he expects to be doing for many years…. A judge threw out his case shortly after his bond was posted.”
“The experience of jurisdictions that have gotten rid of money bail also shows that releasing many more people doesn’t correlate with a high level of rearrest for violent crimes. Washington, DC, got rid of secured money bail and bolstered pretrial services in 1992; today, it releases 94 percent of those accused of crimes as they await court hearings. Of those people, 88 percent returned for all court appearances last year, and only 2 percent were arrested for a violent crime as they awaited court hearings.”

Partners

  • Innovative prosecutors
  • Criminal justice reform advocates
  • Sheriffs and law enforcement

Opposition

  • Bail bondsmen
  • Prosecutors who oppose change
Call us for real-time support using this library, problem-solving tips, and follow-up from our team of national experts:
The State Line
1-833-
STATES-1

FAQ

Who does this help?
Ending cash bail benefits all citizens by reducing state expenditures on incarceration, and ultimately reducing crime.
Is this high cost to the state?
No. It reduces costs because holding inmates in jail is very costly.
Will this bill increase crime?
No, it could decrease it. Studies show that jailing defendants who cannot pay cash bail may actually make them more likely to commit crimes in the future. And it’s known that jail time leads to lost jobs, missed medical appointments and school, and childcare crises—all before any criminal conviction.

Model Policy

(a) For offenses eligible for bail under STATE LAW, no secured financial condition on a person’s pretrial release shall be imposed. No secured financial condition on a person’s release pending sentencing, pending appeal, or pending adjudication of an alleged probation or parole violation, shall be imposed. No fee shall be required for any condition that is associated with pretrial detention or supervision, pretrial or post-trial release, diversion, or deferred prosecution.

(b) At the discretion of the arresting officer or the local prosecuting authority, release on own recognizance with citation may occur for any offense. Such release shall occur prior to jail booking or police processing procedures, and any individual cited and released under this subsection shall have the right to petition for modification of any condition of release imposed in this section.
  • (i) At release, the citing official shall provide to all individuals the following:
  • (1) A summons to appear, which may include the conditions enumerated in subsection (ii); and
  • (2) Written instructions concerning procedures necessary to resolve the case without appearance, if such procedures are appropriate in the specific case.
  • (ii) The presumption shall be release without a condition other than appearance for required court proceedings. When additional conditions are imposed under this subsection, they may include only the following:
  • (1) The requirement to commit no new crimes;
  • (2) The requirement to provide his or her telephone number, mailing address or electronic mail address, the telephone number of another person whom the court may contact to reach the defendant or other means reasonably calculated to ensure that the defendant may be contacted by the court; and
  • (3) If any alleged crime involves a specific victim who is a natural person, the requirement that the defendant not contact that specific victim.

(c) If the defendant is charged with a felony or a misdemeanor involving violating a restraining order or regarding domestic violence, the arresting officer, sheriff, or other designee of the state shall request an immediate hearing before a magistrate to request additional conditions of release or detention. Such hearing may occur no later than the conclusion of jail booking or police processing procedures.

(d) To obtain additional conditions of release or detention beyond those specified in (b)(ii), the designee of the state must certify in writing that there are individualized facts to believe that release on recognizance would not reasonably mitigate a high risk of:
  • (i) non-appearance at court;
  • (ii) witness tampering or obstruction of justice involving a reasonably identifiable person; or
  • (iii) serious physical harm to another reasonably identifiable person.

(e) The magistrate hearing may occur no later than the conclusion of jail booking or police processing procedures.
  • (i) In the hearing, there shall be rebuttable presumptions that:
  • (1) electronic monitoring shall not be a condition of release for any defendant charged with a misdemeanor and shall be imposed only if no other combination of conditions of release will ensure reasonably the appearance of the defendant; and
  • (2) detention should be imposed only as a last resort if no other condition or combination of conditions will ensure reasonably the appearance of the defendant and the safety of the community.
  • (ii) At the magistrate hearing, the magistrate may:
  • (1) Set a temporary condition or conditions of pretrial release, provided:
  • (A) The magistrate finds, on the record and based on individualized facts, that release on recognizance would not reasonably mitigate a high risk of nonappearance, of witness tampering or obstruction of justice involving a reasonably identified person, or of serious physical harm to another reasonably identifiable person; and
  • (B) the temporary conditions of release ordered are the least restrictive necessary to address the specific risk or risks identified. Such conditions shall last until the pretrial release hearing, unless the arrestee/defendant waives their right to a pretrial release hearing, in which case such conditions shall apply until the case is adjudicated.
  • (2) Order temporary detention, if the state proves and the magistrate finds on the record and based on individualized facts that no conditions of release would reasonably mitigate a high risk of imminent, intentional flight or serious physical harm to another reasonably identifiable person.
  • (iii) At the magistrate hearing, the arrestee shall have an attorney or provisional attorney. Attorneys shall be made available to all arrestees free of charge.
  • (iv) A presiding judge or the jurisdiction may issue a standing order with approved standard conditions of release to cover cases in which no magistrate is available when jail booking or police processing concludes. Such an order may include one or more standard conditions of release that the arresting officer, sheriff, or other designee of the State may select, as appropriate to the case.
  • (v) If no magistrate is available when jail booking or police processing concludes, and if the presiding judge has not issued a standing order setting forth available temporary conditions of release, the arresting officer, sheriff, or other designee of the State shall release the arrestee as described in (b).

(f) The pretrial release hearing shall occur no longer than seven days after the magistrate hearing when an arrestee has been released with temporary conditions, or 48 hours after, when an arrestee has been temporarily detained according to a magistrate’s order.
  • (i) At the pretrial release hearing, the defendant has the right to be represented by an attorney, free of charge.
  • (ii) Before the pretrial release hearing, the defendant must be given an adequate opportunity, as determined by their attorney, to meet privately and consult with their attorney. The defendant’s attorney must be granted equal and timely access to all arrest, charging and other relevant documents that are accessible to the prosecuting attorney and the court.
  • (iii) A defendant released with temporary conditions may waive their right to a pretrial release hearing in writing and on the advice of their attorney.
  • (iv) At or before the pretrial release hearing, the prosecuting attorney or the defendant’s attorney may request an extension of up to 48 hours to prepare for the pretrial release hearing. The court may grant a request for such an extension by the prosecuting attorney if the prosecuting attorney certifies to the court that the evidence needed by the State for the pretrial release hearing is unavailable through no fault of the State. The court may grant a request for an extension beyond 48 hours only upon the motion of the defendant if good cause is shown for such an extension.
  • (v) At the pretrial release hearing, the defendant has the right to testify, to present witnesses, to cross-examine witnesses who testify for the State and to present evidence by proffer, through documents or otherwise. The rules concerning admissibility of evidence in a criminal trial do not apply in a pretrial release hearing. If the defendant testifies, the defendant’s testimony at the pretrial release hearing is not admissible in any other criminal proceeding in the case in chief of the State, except for a prosecution for perjury or for the purpose of impeachment.
  • (vi) Before the pretrial release hearing, the prosecuting attorney shall provide all evidence or information favorable to the defendant, including, without limitation, any relevant evidence for the purpose of impeachment of any witness. This requirement must be construed to include any information that would undermine any factual assertion on which the State relies in seeking additional release conditions or pretrial detention.
  • (vii) If the court grants pretrial release and orders any conditions beyond those conditions described in (b)(ii), the court must issue a written statement explaining why the conditions are the least restrictive possible to reasonably ensure the appearance of the defendant and the safety of the community.
  • (viii) A defendant must not be shackled or otherwise restrained when appearing in court for any hearing relating to pretrial release or detention, unless the court makes a finding on the record that the defendant poses an imminent danger to another person based upon individualized specific reasons.
  • (ix) At any time after the pretrial release hearing and before trial, a pretrial release hearing may be reopened upon a showing of good cause, and the State or the defendant may request that the court impose, remove or modify any condition of pretrial release or reconsider an order of pretrial detention. If the State or defendant requests to reopen a pretrial release hearing and the court finds good cause for the request, the pretrial release hearing must be reopened and held within 24 hours. This paragraph must not be construed to affect the right of a defendant to file an interlocutory appeal of any order of pretrial detention.
  • (x) A law enforcement agency or other designee of the State that is detaining a defendant may release the arrestee before the pretrial release hearing if the person in control of that law enforcement agency or other designee of the State, in his or her discretion, believes that such pretrial detention is unnecessary or harmful to the health or well-being of any person or that release of the arrestee is in the public interest.
  • (xi) At the pretrial release hearing, there are rebuttable presumptions that:
  • (1) The arrestee will be immediately released on their own recognizance;
  • (2) Onerous conditions, including, without limitation, drug testing, inpatient treatment, outpatient treatment, travel restrictions, curfew, home confinement and electronic monitoring, are not necessary conditions of release and shall not be preferred over unsecured bond as provided in (e)(xiii); and
  • (3) Detention should be imposed only as a last resort if no other condition or combination of conditions will ensure reasonably the appearance of the arrestee and the safety of the community.
  • (xii) The State may rebut the presumptions set forth in subparagraph (xi) by proving to the court, by clear and convincing evidence, that the arrestee has a high risk of failing to appear if no conditions of release are imposed. If the court finds that the State has rebutted such presumptions by proving, by clear and convincing evidence, that the arrestee has a high risk of failing to appear if no conditions of release are imposed, the court may impose additional conditions of pretrial release if:
  • (1) The court holds a pretrial release hearing as set forth in this subsection; and
  • (2) the court issues a written statement explaining why the conditions are the least restrictive possible to ensure reasonably the appearance of the arrestee and the safety of the community.
  • (xiii) No unsecured bond for the pretrial release of the arrestee may be imposed unless the court:
  • (1) Determines that such a condition is necessary to ensure reasonably the appearance of the arrestee and the safety of the community;
  • (2) conducts an inquiry into the financial resources of the arrestee and his or her ability to pay for such a condition; and
  • (3) makes specific written findings that the arrestee has the present ability to pay for such a condition without incurring substantial hardship, the amount of the monetary bail or bond is the minimum amount necessary to ensure reasonably the appearance of the arrestee and the safety of the community, and less restrictive alternatives are not adequate to ensure reasonably the appearance of the arrestee and the safety of the community.
  • (xiv) Pretrial detention may not be ordered unless the court determines:
  • (1) The conditions are justified in writing or on the record;
  • (2) The State meets its burden of proving by clear and convincing evidence that:
  • (A) No condition or combination of conditions, short of complete incapacitation, could protect against: a high risk of imminent, intentional flight; a specifically identified risk of obstruction of justice; or a specifically identified risk of serious physical harm to another reasonably identifiable person; and
  • (B) the court has considered and rejected all conditions short of detention.

(g) When releasing an arrestee after citation as described in (b), a magistrate hearing as described in (d), or a pretrial release hearing as described in (e), state officials shall offer the arrestee court reminders, such as reminders via phone call or two-way text message; information on how the arrestee can contact the court, report a change in circumstances, or secure flexible scheduling; and other supports available in the jurisdiction such as transitional housing, pretrial navigators, or provision of court- or community-based childcare.

(h) The Attorney General shall propose a procedure to collect and release data from every jurisdiction regarding pretrial release and detention. The data shall be collected and released in a reporting period no shorter than one month and no longer than three months, as to be determined by the Attorney General.
  • (i) Statistics broken down by offense type or demographic group will not be reported for that offense type or demographic group if in a given reporting period, there exist fewer than five arrests in that category.
  • (ii) At a minimum, the data shall include:
  • (1) Demographics of arrestees, including age, zip code of residence, race, ethnicity, gender identity, indigence status, and primary language;
  • (2) charge data, including charges by class, number of charges, top charge by code section and class, top charge description, and charges requested by prosecutor;
  • (3) percentage of arrestees released on own recognizance, released with other pretrial conditions, broken out by the condition, and temporarily detained;
  • (4) the length of time each defendant is held before citation release, magistrate hearing, and pretrial release hearings;
  • (5) the number of arrests and prosecutions in each jurisdiction;
  • (6) if officers of the state requested pretrial conditions or detention, the reasons for which such action was requested;
  • (7) number of pretrial supports offered according to (f);
  • (8) where pretrial diversion programs exist in each jurisdiction, the referral rates into these programs;
  • (9) the breakdown of all statistics by arrestee demographic, charge, prerelease condition (when applicable), state official including magistrate and judge overseeing hearings in (d) and (e), and county; and
  • (10) the average cost of keeping an arrestee in jail each night.