Presumed Innocent: Cash Bail and Pretrial Detention in the United States

The Case of Kalief Browder

Kalief Browder was arrested in May 2010 at the age of sixteen; he was accused of stealing a backpack. His bail was set at $3,000—an amount that his mother could not afford. For the next three years, Browder was held in pretrial detention on Rikers Island, a New York City prison notorious for a culture of violence propagated by its guards. While there, he endured two years of solitary confinement which led him to attempt suicide several times. Browder refused multiple plea deals, adamant that he had not committed a crime. Finally, three years, thirty-one court dates, and multiple plea deals later, Browder’s case was dismissed on May 29th, 2013. He was released the next day.

Browder’s expected trial and verdict had never occurred. Presumed innocent under the law, he had been held without trial for three years; he was the victim of the “chronically overwhelmed” Bronx criminal courts.¹ Like millions of others prosecuted under the American criminal justice system, he had been the victim of cash bail.

The History of American Cash Bail

American cash bail has its origins in Anglo-Saxon England. It was a humanitarian measure put in place which intended to ensure that defendants returned to court without imprisoning them before their trial. The English Bill of Rights of 1689 elaborated on the practice, banning the widespread custom of deliberately detaining defendants eligible for release by setting unaffordable cash bail. The American Bill of Rights, created in 1789, guaranteed that “excessive bail shall not be required” in the Eighth Amendment to the Constitution.² Bail, intended to be emancipatory, has manifested differently in modern America. Rather than allowing defendants to go free, cash bail effectively punishes the poor for their financial circumstances. Today, defendants have two ways to make bail: they can pay the full amount up front or pay a commercial bail bondsman to do so. Most bondsmen will not offer their services for under $2,000. Moreover, bail bonds, usually used by the poor, can create crushing debt for years to come.³Pretrial detention, usually a result of an inability to make bail, encourages poor people to accept plea deals when they ordinarily would not plead guilty. According to a 2012 report from the New York City Criminal Justice Agency, only half of those defendants not detained before their trials were eventually convicted. By contrast, defendants who were imprisoned prior to the resolution of their cases were convicted 92 percent of the time. In other words, “pretrial detention was the single greatest predictor of conviction.”⁴

Being unable to afford bail is the reason that 85 percent of defendants are sent to jail. Every day, there are an estimated 450,000 people held in pretrial detention across the United States.⁵ Nationwide, 62 percent of people in jail are in pretrial detention, with most cases involving nonviolent charges, and most detainees being African-American or Hispanic.⁶ Researchers have found that the longer a person is in detention, the more likely it is that they will commit a crime once released. Some have posited that the negative effects of detention, including interrupting work, separating families, and endangering access to housing, is the cause.⁷

Moving Forward

Meaningful bail reform is a necessity. Eliminating cash bail would not only put an end to the jailing of defendants who should not be imprisoned, it would also overturn the way that court systems are run. Without bail and the resulting expedited guilty pleas, courts would be placed under tremendous pressure. The system, as it currently operates, pursues low-level offenses unnecessarily. Eliminating cash bail would force court systems to have trials for crimes that would ordinarily result in a quick guilty plea, ending miscarriages of justice that have plagued the American criminal justice system. Moreover, observers of the criminal justice system believe it would result in fewer arrests as the people in power dictate which misdemeanors are worth their time in court.⁸

One of the most promising ideas for bail reform involves a risk-based system dependent on three critical reforms: creating pretrial service agencies which use interventions other than detention to confirm appearance at the trial, implementing risk-assessment algorithms to aid judges in pretrial decision-making, and significantly limiting use of pretrial detention.⁹

There is good news: some states have begun to recognize the need for bail reform. New York has embraced new legislation which eliminates cash bail and pretrial detention for most defendants. Instead, a new system of appearance tickets will be issued for most misdemeanours and nonviolent felonies.¹⁰ New Jersey has implemented an algorithm that assesses the likelihood that the defendant will return for their trial or commit a crime while released.¹¹ Since New Jersey has implemented its reforms, the daily population of its jails has dropped by 17.2 percent.¹² Kentucky, Colorado, and Washington, D.C. have also adopted legislation to reduce the use of bail.¹³ Although a few states have begun to tackle the major reforms needed, federal reforms are still necessary to prevent the continuation of these atrocities. Cash bail results in people—presumed innocent and determined eligible for release—being confined for weeks, months, or even years for their inability to pay. This practice is unconstitutional, immoral, and has overwhelmingly victimized the poor and racial minorities.

In 2015, two years after his release, Kalief Browder committed suicide.¹⁴ His life had been irreversibly altered by his three years of detention. He is only one among many who have suffered from unjust pretrial detention. Browder, like so many others, deserves to have justice served.

Edited by Alisia Bello